HHS Acquisition Regulation: Regulatory Review

SUPPLEMENTARY INFORMATION:

I. Background

This rulemaking is being taken under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to authorize the issuance of agency acquisition regulations that implement or supplement the FAR. The OFPP Act, as codified in 41 U.S.C. 1702, provides the authority for the FAR and for the issuance of agency acquisition regulations consistent with the FAR. This authority ensures that Government procurements are handled fairly and consistently, that the Government receives overall best value, and that the Government and contractors both operate under a known set of rules. The statute at 41 U.S.C. 1121(b) provides authority for the FAR, while 41 U.S.C. 1121(e), 1702(b)(3)(e), and 1702(c)(2), when read together, provide authority for the issuance of agency acquisition regulations consistent with the FAR. HHS issues the HHSAR under these authorities.

HHS has determined that changes to the HHSAR are necessary to align it to the FAR. As a result, the HHS Acquisition Policy Division Integrated Project Team (IPT) under the direction of the Senior Procurement Executive and composed of representatives from HHS's operating divisions (OPDIVs) and staff divisions (STAFFDIVs) and other agency stakeholders, have participated in reviews of the regulation, resulting in a complete revision of the HHSAR. HHS conducted a comprehensive review of the HHSAR with the goal of updating obsolete coverage, streamlining policies and procedures where applicable consistent with current guidance, and moving internal policies applicable to the HHS acquisition workforce to a new HHS Acquisition Manual (HHSAM). The HHSAM will incorporate portions of the internal procedural guidance removed from the HHSAR, as well as other internal agency acquisition policy.

This proposed rule reflects changes that need to be made to the HHSAR to implement and/or supplement the FAR. HHS is proposing to substantially revise and streamline the HHSAR to update or remove references to superseded or obsolete policies, procedures, and organizations and to incorporate electronic links to FAR provisions and other matters referenced in the HHSAR. Other revisions include incorporating additional policies, solicitation provisions, and/or contract clauses into the HHSAR to implement and supplement the FAR and satisfy HHS unique mission needs and responsibilities. This includes incorporating changes in dollar and approval thresholds, definitions, and HHS position titles and offices. The reissued HHSAR proposed in this notice would correct inconsistencies, remove redundant and duplicate material already covered by the FAR, delete outdated material or information, and appropriately renumber HHSAR text, clauses, and provisions where required to comport with FAR format, numbering, and arrangement. All amendments, revisions, and removals have been reviewed and concurred with by a HHSAR revision team from each of the OPDIVs/STAFFDIVs and key agency stakeholders. This effort will create a 2024 edition of the HHSAR.

Currently, HHS is tracking a number of new FAR case proposed and final rules, as well as Executive orders (E.O.s) and directives that the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) are reviewing for potential impact to the FAR system. The Executive orders include E.O. 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (86 FR 7009; Jan. 25, 2021), E.O. 14005, “Ensuring the Future is Made in All of America by All of America's Workers” (86 FR 7475; Jan. 28, 2021), and E.O. 14008, “Tackling the Climate Crisis at Home and Abroad” (86 FR 7619; Feb. 1, 2021). If and when FAR cases and proposed rules are drafted and FAR final rules are published, HHS intends to examine each of these for impact to the HHSAR and any updates that may be required to maintain the HHSAR. HHS is institutionalizing an ongoing, sustained HHSAR refreshment process, so that as FAR proposed and final rules, E.O.s, and other directives are issued, HHS will initiate new HHSAR cases to bring the regulation in alignment and to avoid duplication, as necessary. HHS will examine any FAR final rules that become effective and will take into consideration such FAR changes, as appropriate, in subsequent rulemakings. When needed, HHS will also consider use of an advanced notice of proposed rulemaking (ANPRM) to obtain public input as the agency implements rulemaking to address new and emerging issues that may be identified by the Councils or by HHS as a result of E.O.s and other directives. HHS will use this public input to inform how HHS implements such guidance in the HHSAR.

The HHSAR uses the regulatory structure and arrangement of the FAR, and headings and subject areas are broken up consistent with the FAR content. The HHSAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections.

When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The HHSAR is set forth at 48 CFR, chapter 3, parts 301 through 370.

HHS is proposing to revise the HHSAR to add new policy or regulatory requirements and to remove any guidance that is applicable only to HHS's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking.

Discussion and Analysis

HHS proposes to make the following changes to the HHSAR as a part of its updating and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the HHSAR, each section cited for removal has been considered for inclusion in HHS's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authorities that are removed from the HHSAR will be included in the HHSAM as internal agency guidance.

We propose to revise the following parts of the HHSAR, 48 CFR chapter 3: Parts 301, 302, 303, 304, 305, 306, 308, 309, 311, 312, 313, 314, 315, 316, 319, 322, 323, 324, 326, 327, 330, 331, 332, 333, 334, 335, 336, 337, 342, 352, and 370.

We propose to add seven (7) parts to the HHSAR: Parts 318 (Emergency Acquisitions); 325 (Foreign Acquisition); 341 (Acquisition of Utility Services); 343 (Contract Modifications); 344 (Subcontracting Policies and Procedures); 345 (Government Property); and 347 (Transportation).

And, to streamline the HHSAR and improve its use and benefit to the public, small businesses, and the HHS acquisition workforce, we propose to remove the following three (3) parts from the HHSAR: Parts 307 (Acquisition Planning); 310 (Market Research); and 317 (Special Contracting Methods). This would also move internal procedural guidance still applicable from these parts to the HHSAM, and/or remove outdated and unnecessary text or policy redundant to the FAR.

We propose to revise the authority citations cited in each HHSAR part to reflect as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304. Where additional authorities for a specific part are applicable, we identify them under that discussion of each HHSAR part later in this preamble.

We propose to retain the authority of 5 U.S.C. 301. This authority provides that the head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property.

We propose to retain the authority of 40 U.S.C. 121(c) and slightly revise the reference. This authorizes the head of each executive agency to issue orders and directives that the agency head considers necessary to carry out the FAR.

We propose to include a reference to 41 U.S.C. 1121(c)(3). This provision states that the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in section 1121, as well as other sections of title 41.

We propose to add an authority citation for 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of HHS' Senior Procurement Executive.

And we propose to add the citation of “48 CFR 1.301 through 1.304” to reflect the authority and responsibility set forth in the FAR and delegated to Federal agencies to issue agency regulations that supplement and implement the FAR.

Any other proposed changes to authorities are shown under the individual parts below.

Throughout the proposed rule (including in the discussion of each proposed revised or new HHSAR part), whenever HHS indicates that it proposes to revise and update the citation(s) to the FAR and HHSAR, it is for the purpose of comporting with FAR Drafting Guidelines convention and style, and in accordance with FAR 1.105-2, Arrangement of regulations, that specifies how the FAR and by extension the HHSAR is to be referenced within the body of the regulation. References to revising and updating citations are to either correct the current citations, correct any FAR or HHSAR references to a more suitable citation, or add appropriate FAR or HHSAR citations where necessary.

HHSAR Subchapter Headings

Under the authority of 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702, and 48 CFR 1.301 through 1.304 we propose to update the following HHSAR subchapter heading to align with the Federal Acquisition Regulation, title 48, chapter 1:

• SUBCHAPTER B—COMPETITION AND ACQUISITION PLANNING is revised to read: SUBCHAPTER B—ACQUISITION PLANNING

We propose to update the following HHSAR subchapter numbering and heading to provide a similar numbering and heading construct as other agency supplemental regulations:

• SUBCHAPTER M—HHS SUPPLEMENTATIONS is revised to read: SUBCHAPTER I—DEPARTMENT SUPPLEMENTARY REGULATIONS

HHSAR Part 301—HHS Acquisition Regulation System

We propose to revise the authority citations for part 301, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(b), (c)(3); 41 U.S.C. 1303(a)(2); 41 U.S.C. 1702, 1707; and 48 CFR 1.301 through 1.304.

In addition to the authorities described in the Discussion and Analysis above, we propose to add the authority of the statute at 41 U.S.C. 1121(b) which provides authority for the FAR, while 41 U.S.C. 1121(e), 41 U.S.C. 1702(b)(3)(e), and 41 U.S.C. 1702(c)(2), when read together, provide authority for the issuance of agency acquisition regulations consistent with the FAR.

We also propose to add the authority of 41 U.S.C. 1303(a)(2) to HHSAR part 301. This authority provides that other regulations relating to procurement issued by an executive agency shall be limited to regulation essential to implement Government-wide policies and procedures within the agency, and additional policies and procedures required to satisfy the specific and unique needs of the agency. HHS follows these limitations on the policy and procedures promulgated in the HHSAR.

We also propose to add the authority of 41 U.S.C. 1707 to HHSAR part 301. This authority prescribes the required publication of proposed rules that HHS follows to ensure transparency and the ability of the public to comment on the unique policies and procedures HHS has identified to implement specific agency requirements to fulfill its mission and issue and administer contracts and acquisitions in accordance with the FAR.

We propose to add section 301.000, Scope of part, to prescribe general Department of Health and Human Services Acquisition Regulation (HHSAR) policies, including information regarding the maintenance and administration of the HHSAR, acquisition policies, and procedures for deviation from the HHSAR and the Federal Acquisition Regulation (FAR).

In subpart 301.1, Purpose, Authority, Issuance, we propose to revise section 301.101, Purpose, to remove scope of part language now covered in section 301.000, as well as moving the remaining language to the more appropriately placed new subpart 301.3, Agency Acquisition Regulations, section 301.301, Policy. We propose to add language that the subpart establishes uniform acquisition policies and procedures to implement and supplement the FAR, and the authorities under which the HHSAR is issued.

We propose to revise section 301.103, Authority, to prescribe the delegated authority by the Secretary of HHS to the Senior Procurement Executive (SPE) for clarity and explain the authority under which the HHSAR is issued, move the 48 CFR chapter 3 reference to new section 301.501-1, as well as other administrative edits.

We propose to add section 301.104, Applicability, to prescribe that the FAR and the HHSAR apply to all HHS acquisitions, except where expressly excluded.

We propose to add sections 301.105, Issuance, and 301.105-1, Publication and code arrangement, to identify the HHSAR issuance as 48 CFR chapter 3, which was moved from section 301.103. We propose to add section 301.105-2 Arrangement of regulations, to prescribe the HHSAR arrangement, numbering system, and references and citations, to conform with FAR 1.105-2. We propose to add section 301.105-3, Copies, regarding access to and HHSAR availability.

We propose to revise section 301.106, OMB Approval under the Paperwork Reduction Act, to revise the title to comport with FAR 1.106, and to identify that the list of the information collection and recordkeeping requirements contained in the HHSAR, approved by the Office of Management and Budget (OMB), are revised to reflect current approved information collections. This list would be otherwise publicly available on reginfo.gov after a final rule pertaining to this proposed rule is published and effective.

We propose to add section 301.107, Certifications, to prescribe when a new requirement for a certification by a contractor or offeror may be included in the HHSAR, per 41 U.S.C. 1304(a)(b)(3).

We propose to remove the reserved subpart 301.2, as unnecessarily needed.

We propose to add subpart 301.3, Agency Acquisition Regulations, and section 301.301, Policy, where we propose to move the language from section 301.101 to be more appropriately placed here to describe that the HHSAR contains HHS policies governing implementation and supplementation of the FAR, including minor administrative edits.

We propose to add section 301.301-70, Amendment of the HHSAR, as an HHS supplemental section to the FAR prescribing the processes for requesting a change to the HHSAR and maintenance of HHSAR and HHSAM content and publication.

We propose to add section 301.303-70, Publication and codification—HHSAR, to prescribe that the HHSAR and HHSAM shall parallel the FAR in format, arrangement, and numbering systems. The section also establishes that HHSAR titles and numbering sequencing shall conform with the FAR to the maximum extent practicable, describes the policy, guidance and/or procedures regarding HHSAR numbering sequence when supplementing the FAR, and provides unique HHS Operating Division guidance on supplementary material numbering sequencing.

We propose to add section 301.304, Agency control and compliance procedures, which provides that the SPE is responsible for amending the HHSAR for compliance with FAR 1.304.

In subpart 301.470, Deviations from the FAR and HHSAR, we propose to remove section 301.401, Deviations, and revise the section number and title to section 301.402, Policy, and propose additional references to new sections 301.403 and 301.404, as well as administrative edits for clarification. We propose to add section 301.403, Individual deviations, to prescribe the delegated authority to the SPE. We propose to add section 301.404, Class deviations, to prescribe the delegated authority to the SPE.

In subpart 301.6, Career Development, Contracting Authority, and Responsibilities, we propose to add section 301.601, General, to prescribe the delegated authority to the Chief Acquisition Officer and the SPE, to manage the HHS contracting functions. We propose to add the authorities delegated to the SPE in paragraph (a), and the authorities the SPE may further delegate to other HHS officials, such as the heads of the contracting activities (HCAs), and that HCA's may authorize the use of ordering officers, in paragraph (b).

We propose to revise section 301.602-3, Ratification of unauthorized commitments, in paragraph (a) with administrative edits and to move agency procedural language to be appropriately placed in the HHSAM. We propose to remove paragraph (b)(2) as repetitive to the FAR and moving paragraph (c)(5) to the HHSAM as procedural language.

We propose to revise section 301.603, Selection, appointment, and termination of appointment of contracting officers, and 301.603-1, General, to establish SPE and re-delegable authority.

We propose to add section 301.603-3, Appointment, to prescribe agency policy regarding contracting officer appointments and delegations of authority, and that HCAs may delegate micro-purchase authority to HHS employees under the HHS Governmentwide Purchase Card Program.

We propose to add section 301.604, Contracting Officer's Representative (COR), and 301.604-70, Contract clause, which provides the prescription for contracting officers to insert the new clause at 352.201-70, Contracting Officer's Representative, in solicitations and contracts, when the contracting officer intends to designate a COR.

We propose to add section 301.707, Signatory authority, to state that the signature authorities for determinations and findings, when delegable in the FAR, are prescribed in the applicable HHSAR parts or corresponding HHSAM part.

HHSAR Part 302—Definitions of Words and Terms

We propose to revise the authority citations for part 302, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 302.1, Definitions, and section 302.101, Definitions, we propose to add one new definition, remove one definition, and revise two existing definitions. We propose to add the definition for ordering officer, and to remove the definition for Contracting Officer's Representative as it is duplicative of the FAR. We also propose to revise the definition for agency head or head of the agency to add delegation designation clarifications, and to revise the definition for head of the contracting activity (HCA) to make minor edits and to add the HHSAR citation for HCA delegated authorities.

HHSAR Part 303—Improper Business Practices and Personal Conflicts of Interest

We propose to revise the authority citations for part 303, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 303.1, Safeguards, we propose to revise the text at 303.101-3, Agency regulations, to specify employee applicability of the HHS Standards of Conduct, as found in 45 CFR part 73. We propose to remove 303.104-7, Violations or possible violations of the Procurement Integrity Act, to appropriately move the content to the HHSAM as agency procedures.

In subpart 303.2, Contractor Gratuities to Government Personnel, we propose no revisions to section 303.203, Reporting suspected violations of the Gratuities clause. We propose to add section 303.204, Treatment of violations, to provide guidance required by FAR 3.203, and to provide notice and hearing information required by FAR 3.204. The section identifies the Suspending and Debarring Official (SDO) as the official designated to make the determination whether a violation of the Gratuities clause at FAR 52.203-3 has occurred and what action will be taken under FAR 3.204(c). We also propose adding the cross reference to 309.406-3, Procedures, when the SDO determines that a violation has occurred, and that debarment is being considered.

In subpart 303.6, Contracts with Government Employees or Organizations Owned or Controlled by Them, we propose to revise section 303.603, Exceptions, with minor administrative edits for clarification.

In subpart 303.7, Voiding and Rescinding Contracts, we propose to revise section 303.704, Policy, with a minor administrative edit.

We propose to remove subpart 303.10, Contractor Code of Business Ethics and Conduct, and section 303.1003, Requirements, to appropriately move the content to the HHSAM as agency procedures.

HHSAR Part 304—Administrative and Information Matters

We propose to revise the authority citations for part 304, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise the title of part 304 to “Administrative and Information Matters,” to comport with FAR part 4.

We propose to remove subpart 304.6, Contract Reporting, and section 304.6, General, and propose the content be moved to the HHSAM as agency procedures.

We propose to remove subpart 304.16, Unique Procurement Instrument Identifiers, and section 304.1600, Scope of subpart, and we propose the content be moved to the HHSAM as agency procedures.

In subpart 304.71, Review and Approval of Proposed Contract Actions, we propose to remove the underlying sections, and reserve the subpart. We propose to remove section 304.7100, Policy, and propose the content be moved to the HHSAM as agency procedures.

In subpart 304.72, Affordable Care Act Prevention and Public Health Fund—Reporting Requirements, section 304.7200, Scope of subpart, we propose to move some of the language to the retitled section 304.7201, Policy, due to the nature of the implementing language.

We propose to retitle section 304.7201 as “Policy,” and move paragraphs (a) through (c) to the HHSAM as agency procedures. We propose minor administrative edits to the remaining content and restructuring the section to accommodate the relocated from section 304.7200.

We propose to revise section 304.7202, Contract clause, to add the applicable solicitations and contract actions value of $25,000 or more threshold, and to provide minor administrative edits.

HHSAR Part 305—Publicizing Contract Actions

We propose to revise the authority citations for part 305, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to remove subpart 305.3, Synopses of Contract Awards, and section 305.303, Announcement of contract awards, and propose the content be moved to the HHSAM as agency procedures.

We propose to add subpart 305.4, Release of Information, and section 305.402, General public, to state that requests from the public for specific records pertaining to contract actions shall be processed according to the Freedom of Information Act. We propose to add sections 305.470, Contractor award announcements, advertisements, and releases, and 305.470-1, Policy, to provide policy that restricts contractors from referring to its HHS contract(s) in commercial advertising in a manner that states or implies the Government approves or endorses the contractor's products or services, or considers them superior to other products and services. This section also states that HHS contractors share responsibility for protecting sensitive and classified information, and approval requirements by the contracting officer prior to the release of any contract award information by the contractor.

We propose to add section 305.470-2, Contract clause, which would also prescribe clause 352.205-70, Advertisements, Publicizing Awards, and Releases, in solicitations and contracts that exceed the simplified acquisition threshold and includes an Alternate I for contracts involving sensitive or classified information.

We propose removing subpart 305.5, Paid Advertisements, and section 305.502, Authority, and propose to move the content to the HHSAM as agency procedures.

In subpart 305.70, Publicizing Requirements Funded From the Affordable Care Act Prevention and Public Health Fund, we propose minor administrative edits for clarification to sections 305.7003, Publicizing preaward, and 305.7004, Publicizing postaward.

HHSAR Part 306—Competition Requirements

We propose to revise the authority citations for part 306, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 306.2, Full and Open Competition After Exclusion of Sources, we propose to revise section 306.202, Establishing or maintaining alternative sources, by redesignating paragraph (a) as paragraph (b)(1) to comport with FAR and HHSAR numbering policy, move the existing content at paragraph (b)(1) to the HHSAM as agency procedures, and provide administrative edits for clarification.

In subpart 306.3, Other Than Full and Open Competition, in section 306.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements, we propose to remove the reference to FAR 6.302-1 in the title, assign paragraph designation (a)(2) to the first paragraph to comport with FAR and HHSAR numbering policy, and to add descriptive implementing language. We propose to add section 306.302-2, Unusual and compelling urgency, to prescribe delegated authority to the SPE regarding making the determination that exceptional circumstances apply when seeking a total period of performance exceeding one year, including all options, for a contract awarded or modified using the authority at FAR 6.302-2(d)(1)(ii).

In subpart 306.5, Competition Advocates, we propose to revise the title to “Advocates for Competition,” to comport with the FAR subpart title. We propose to revise section 306.501, Requirement, to prescribe the designation of the Advocate for Competition as the Director, Acquisition Policy Division, Office of Acquisitions (ASFR/APD). We also propose to add that the Director, ASFR/APD may further delegate this authority to appoint an alternate agency advocate for competition, and that the HHS Advocate for Competition shall designate procuring activity advocates for competition in accordance with FAR 6.501. We also propose to add the uniform resource locator for the location of the list of HHS procuring activity advocates for competition.

HHSAR Part 307—Acquisition Planning

We propose to remove and reserve HHSAR part 307 in its entirety including underlying section 307.105, Contents of written acquisition plans, as the language is duplicative of the FAR, and to move other content to the HHSAM as needed as agency internal procedures.

HHSAR Part 308—Required Sources of Supplies and Services

We propose to revise the authority citations for part 308, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to remove subpart 308.4, Federal Supply Schedules, and section 308.405-6, Limited source justification and approval, as duplicative to the FAR, and to move some content to the HHSAM as agency procedures.

In subpart 308.8, Acquisition of Printing and Related Supplies, we recommend removing sections 308.800, Scope of subpart, and 308.801, Definitions, as the sections contain content duplicative of the FAR, and procedural in nature. We propose to move the applicable content to the HHSAM as agency procedures. In section 308.802, Policy, we propose to revise the existing content to explicitly state that unless specifically authorized in HHS contracts, no printing by a contractor or subcontractor is authorized under an HHS contract. And we propose to add language that permits contracting officers to authorize limited printing pursuant to the clause prescribed at section 308.870. We also propose to remove the information about HHS' designated central printing authority to the HHSAM as internal agency guidance.

We propose to revise section 308.803 by renumbering and retitling it to 308.870, Contract clause, which prescribes clause 352.208-70, Printing and Duplication, to be inserted in all solicitations, contracts, and orders for supplies or services over the simplified acquisition threshold, unless printing or increased duplication is authorized by statute.

HHSAR Part 309—Contractor Qualifications

We propose to revise the authority citations for part 309, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add subpart 309.1, Responsible Prospective Contracts, and sections 309.104, Standards, and 309.104-1, General standards, to establish that for cost-reimbursement or incentive type contracts, or contracts with progress payments, the prospective contractor's accounting system must provide reasonable stated assurances.

In subpart 309.4, Debarment, Suspension, and Ineligibility, we propose adding section 309.400, Scope of subpart, to establish that the subpart implements FAR subpart 9.4 and prescribes HHS procedures and related actions for the suspension and debarment of contractors.

We propose to revise section 309.403, Definitions, by adding the definition for the Suspension and Debarment (S&D) Committee introduced in revised section 309.406-3. We also propose revising the existing definition to the Suspending and Debarring Official (SDO) to comport with the FAR 9.403, as well as revising the title of the appointed HHS SDO to Deputy Assistant Secretary for Acquisitions, to reflect the current title.

We propose to remove section 309.404, System for Award Management (SAM) exclusions, as much of the content is duplicative of the FAR, and the remaining content be moved to the HHSAM as agency procedures.

We propose to revise section 309.405, Effect of listing, by removing from the section title “(compelling reason determinations),” to comport with the title at FAR 9.405, and to move the existing content in paragraph (a) to the HHSAM as agency procedures and replace the content with language to prescribe the delegation of authority to the SDO and permit further redelegation to the HCA.

We propose to add section 309.405-1, Continuation of current contracts, which authorizes the continuation of contracts for contractors debarred (or proposed to be debarred) or suspended. It also requires a written determination before the award of orders or options on existing contracts with these contractors (see FAR 9.405-1(a)(2)) and delegates authority to the SDO with further redelegation to the HCA. We also propose to add section 309.405-2, Restrictions on subcontracting, which prescribes the delegated authority to the SDO, who further redelegates the authority to the HCA to consent to a contractor's use of a subcontractor who is suspended, proposed for debarment, or is debarred.

We propose to add section 309.406-1, General, to provide additional SDO debarment consideration and determination factors and examples.

We propose to revise section 309.406-3, Procedures, to include minor administrative edits to the existing content, and to introduce a formal Suspending and Debarring Committee (S&D Committee) to assist the SDO in the final determination for debarment. This section also provides additional public-facing debarment referral procedures and S&D Committee procedures for transparency.

We propose to add sections 309.407, Suspension, and 309.407-1, General, to prescribe the delegated authority to the SDO to determine whether to continue business dealings with a suspended contractor, and to establish the SDO as the suspending official under the Federal Management Regulation at 41 CFR 102-117.295.

We propose to revise section 309.407-3, Procedures, to include minor administrative edits to the existing content, and to introduce a formal Suspending and Debarring Committee (S&D Committee) to assist the SDO in the final determination for suspension. This section also provides additional public-facing suspension referral procedures and S&D Committee procedures for transparency.

We propose to revise section 309.470-1, Situations where reports are required, to make administrative edits in stating that the contracting officer shall report to the HCA and SDO regarding the situations listed thereafter.

We propose to add section 309.471, Fact-finding procedures, to establish procedures to resolve genuine disputes of material fact involving debarment or suspension determinations. The section provides details to include the Office of General Council, witnesses, and other factors needed to assist the SDO in a final suspension or debarment determination.

We propose to add subpart 309.5, Organizational and Consultant Conflicts of Interest, and section 309.503, Waiver, to provide that the SPE is the designee at FAR 9.403 to waive general rules or procedures of the subpart. We also propose to add section 309.507-1, Solicitation provision, which prescribes the new provision at 352.209-70, Organizational Conflicts of Interest, to be included in any solicitation for the services addressed at FAR 9.502.

HHSAR Part 310—Market Research

We propose to remove HHSAR part 310, Market Research, and reserve the part as we propose to remove the coverage currently contained at section 310.001 as duplicative of the FAR.

HHSAR Part 311—Describing Agency Needs

We propose to revise the authority citations for part 311, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add subpart 311.1, Selecting and Developing Requirement Documents, and section 311.103, Market acceptance, to prescribe that the authority is delegated to the HCA.

We propose to add subpart 311.5, Liquidated Damages, and section 311.501, Policy, to establish that the HCA may reduce or waive the amount of liquidated damages assessed under a contracts, if the Commissioner, Financial Management Service, or designee, approves.

We propose to add subpart 311.6, Priorities and Allocations, to provide information on the HHS Health Resources Priorities and Allocation System (HRPAS) that is part of the Federal Priorities and Allocations System. This subpart references guidance and procedures for use of the Defense Production Act (DPA) priorities and allocations authority with respect to health resources necessary or appropriate to promote the national defense as delegated to the Secretary of HHS.

We propose to add section 311.600, Scope of subpart, to establish that the subpart details information on the HHS HRPAS that is part of the Federal Priorities and Allocations System. This subpart references guidance and procedures for use of the DPA priorities and allocations authority with respect to health resources necessary or appropriate to promote the national defense as delegated to the Secretary.

We propose to add section 311.601, Definitions, to establish two definitions, national defense and rated order, as the definitions differ slightly from the FAR and are derived from 45 CFR part 101.

We propose to add section 311.602-70, The Health Resources Priorities and Allocation System, to reference Executive Order (E.O.) 13603, National Defense Resources Preparedness, dated March 16, 2012. This E.O. provides the Secretary the authority to require acceptance and priority performance of contracts or orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense, with respect to health resources is delegated to the Secretary.

We propose to add section 311.603, Procedures, and section 311.603-70, Agency program, to reference specific HHS agency procedures as set forth in the HRPAS regulations at 45 CFR part 101, which provides guidance and procedures for use of the DPA priorities and allocations authority with respect to health resources, including the use of priority rated orders, necessary or appropriate to promote the national defense.

In subpart 311.70, Section 508 Accessibility Standards, we propose to reserve the subpart, as we propose to move the content at section 311.7000, Defining electronic information technology requirements, to the HHSAM as agency procedures.

In subpart 311.71, Public Accommodations and Commercial Facilities, we propose to revise section 311.7102, Contract clause, which prescribes clause 352.211-1, Public Accommodations and Commercial Facilities, be inserted in solicitations, contracts, and orders requiring the contractor to conduct events in accordance with 311.7100(b). We propose to revise clause number to 352.211-70, to comport with FAR numbering convention of supplemental clauses.

In subpart 311.72, Conference Funding and Sponsorship, we propose minor administrative edits to section 311.7201, Funding and sponsorship. We also propose to revise section 311.7202, Contract clause, which prescribes clause 352.211-2, Conference Sponsorship Request and Conference Materials Disclaimer, be inserted in solicitations, contracts, and orders providing funding which partially or fully supports a conference. We propose to revise clause number to 352.211-71, to comport with FAR numbering convention of supplemental clauses.

In subpart 311.73, Contractor Collection of Information, we propose minor administrative edits to section 311.7300, Policy. We also propose to revise section 311.7301, Contract clause, which prescribes clause 352.211-3, Paperwork Reduction Act, be inserted in solicitations, contracts, and orders that require a contractor to collect the same information from 10 or more persons. We propose to revise the clause number to 352.211-72, to comport with FAR numbering convention of supplemental clauses.

HHSAR Part 312—Acquisition of Commercial Products and Commercial Services

We propose to revise the authority citations for part 312, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise the title of part 312 to “Acquisition of Commercial Products and Commercial Services,” to comport with the FAR part 12 title.

We propose to remove subpart 312.1, Acquisition of Commercial Items—General, and section 312.101, Policy, moving the content to the HHSAM as agency procedures.

We propose to remove subpart 312.2, Special Requirements for the Acquisition of Commercial Items, and section 312.202, Market research and description of agency need, as the content is duplicative to the FAR.

We propose adding subpart 312.3, Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Products and Commercial Services, consisting of section 312.301, which prescribes clause 352.212-70, Gray Market and Counterfeit Items, which requires the contracting officer to insert in solicitations and contracts for new medical supplies, new medical equipment, new information technology equipment, and maintenance of medical or information technology equipment that includes replacement parts, if used, refurbished, or remanufactured parts are unacceptable, when the associated solicitation includes FAR provisions 52.212-1, Instructions to Offerors—Commercial Products and Commercial Services, and 52.212-2, Evaluation—Commercial Products and Commercial Services.

HHSAR Part 313—Simplified Acquisition Procedures

We propose to revise the authority citations for part 313, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise part 313, Simplified Acquisition Procedures, to remove one section and substantively revise subpart 313.3 to enact legislative requirements. We propose to remove section 313.003, Policy, which provides section 508 of the Rehabilitation Act of 1973 guidance for Information and Communication Technology acquisition. This guidance is also found at 339.203(a) and will be addressed in the HHSAM in part 339.

We also propose to revise subpart 313.3, Simplified Acquisition Methods, and section 313.301, Governmentwide commercial purchase card. The existing content at 313.301 is removed and placed in the HHSAM as it is more appropriate for internal agency operating procedures. We propose to redesignate the section as 313.301-70, revise the heading to read “Governmentwide commercial purchase card—purchases of PPE”, and state that the Infrastructure Investment and Jobs Act (IIJA), Public Law 117-58, Subtitle C, Make Personal Protective Equipment (PPE) in America (MPPEIA), applies to all purchases of PPE including those transactions made using the Governmentwide commercial purchase card under the micro-purchase threshold. We are including a cross reference to subpart 325.71 for definitions, restrictions, and exceptions, when procuring PPE.

HHSAR Part 314—Sealed Bidding

We propose to revise the authority citations for part 314, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to remove subpart 314.1, Use of Sealed Bidding, and section 314.103, Policy, which states that electronic and information technology supplies and service shall comply with section 508 of the Rehabilitation Act of 1973, as the content is appropriately covered in part 339, Acquisition of Information Technology.

We propose to retain subpart 314.4, Opening of Bids and Award of Contract, and section 314.404-1, Cancellation of invitations after opening, with no change to the content. We propose to revise section 314.407-3, Other mistakes disclosed before award, to add delegation, without redelegation, language to the HCA's authority. We also propose to revise section 314.407-4, Mistakes after award, to add delegation, without redelegation, language to the HCA's authority.

We propose to add sections 314.408, Award, and 314.408-70, Award when only one bid is received, to provide when only one bid is received in response to an invitation for bids, such bid may be considered and accepted if the contracting officer makes a written determination, approved one level above the contracting officer, documenting the stated issues in the section, and that the determination shall be placed in the contract file.

HHSAR Part 315—Contracting by Negotiation

We propose to revise the authority citations for part 315, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 315.2, Solicitation and Receipt of Proposals and Information, we propose to remove section 315.204-5, Part IV—Representations and instructions, as the content is repetitive to the FAR, and moving some content to the HHSAM as agency procedure.

We recommend retaining section 315.208, Submission, modification, revision, and withdrawal of proposals, as a title with no content, and moving the current content to new section 315.208-70, Submission, modification, revision, and withdrawal of proposals—R&D acquisitions, to clarify that the content applies in the case of biomedical or behavioral research and development acquisitions only. We also propose to restructure the content into redesignated paragraph numbers. Paragraph (a) contains the original 315.208(b) text, revised for clarity. Paragraph (b) is a new proposed paragraph that sets forth the policy permitting the contracting officer to consider a proposal received concerning biomedical or behavioral research and development (R&D) acquisitions after the date specified for receipt, under certain conditions. It is based on the existing provision at 352.215-70, Late Proposals and Revisions, that pertains only to biomedical or behavioral R&D solicitations using competitive proposals. While the provision itself was previously codified, there was no corresponding policy in the HHSAR, which is now provided. Paragraph (c) contains the original 315.208(b)(2) content. We propose redesignating the paragraph as paragraph (c), removing the acronym “HCA”, and substituting it with “contracting officer” to reflect that the contracting officer will exercise this authority rather than the HCA.

We propose to add section 315.209-70, Solicitation provision, which prescribes the provision 352.215-70, Late Proposals and Revisions—R&D Solicitations, in biomedical or behavioral R&D competitive acquisition solicitations subject to the requirements of 315.208-70(a) and the authorization of the HCA.

In subpart 315.3, Source Selection, we propose to revise section 315.303-70 by incorporating administrative edits and formatting revisions to the section for clarification.

We propose to revise section 315.304, Evaluation factors and significant subfactors, by removing the term “electronic and information technology (EIT)” and replacing it with “information and communication technology (ICT)” to comport with FAR subpart 315.3 terminology. We propose to revise the section to provide clarity that the requirement is that contracting officers shall include a separate technical evaluation factor pertaining to compliance with section 508 requirements, rather than the language as now shown that appears to just require contracting officers to comply with the general tenets of section 508. We also propose to add a reference to 339.203.

We propose to revise section 315.305, Proposal evaluation, by removing the content and leaving the header with no text. We propose adding section 315.305-70, Proposal evaluation—use of non-Federal evaluators, and revising and updating the content now at 315.305(c)(1) through (2) and move it to 315.305-70. Accordingly, we propose to reformat and redesignate the text in section 315.305 from paragraphs (c)(1) and (2) to paragraphs (a) and (b) to comport with FAR numbering requirements, and to include paragraphs (b)(1) through (4), and to add a new paragraph (c) to outline HHS's policy with respect to use of non-Federal evaluators. We also propose administrative edits in the section for clarification.

In paragraph (a), we propose to add language that add the requirement that the Source Selection Authority or the contracting officer, as applicable, make the decision to disclose proposals to non-Federal evaluators and to add a reference to FAR 15.305(c) at the end of the paragraph.

In paragraph (b), redesignated from paragraph (c)(1), we propose to add content that when an offeror's or contractor's proposal will be disclosed outside the Government, the provision prescribed at 315.305-71 requires that the contractor and its employees, as well as any subcontractors and their employees, agree that when performing work as an evaluator under a Government contract that they will use the data (trade secrets, business data, and technical data) contained in the proposal for evaluation purposes only. Proposed paragraphs (b)(1) through (4) provides other conditions and restrictions on use of non-Federal evaluators. In paragraph (c), it requires that the agreement shall be signed by the contractor and the assigned contractor employee, subcontractor, or consultant ( i.e., the non-Federal evaluator) and filed in the contract file of an offeror's proposal.

We propose to add section 315.305-71, Solicitation provision, to prescribe the provision at 352.215-71, Use of Non-Federal Evaluators—Conditions for Evaluating Proposals, in solicitations when the Government may use non-Federal evaluators to evaluate an offeror's or contractor's proposals and offers.

In subpart 315.4, Contract Pricing, at section 314.404-2, Data to support proposal analysis, we propose to revise the section title to comport with the FAR section title, provide administrative edits within the section for clarification, and move some of the content to the HHSAM as agency procedures.

In subpart 315.6, Unsolicited Proposals, we propose to add section 315.604, Agency points of contact, to establish minimum information that HHS operating divisions/staff divisions must make available to potential offerors of unsolicited proposals in accordance with FAR 15.604(a) and assigning this responsibility to the HCAs. Additionally, we propose adding a uniform resource locator to the HHS internet web page to provide the HHS point of contact information.

We propose to revise section 315.605-70, Content of unsolicited proposals—warranty by offeror, by revising the title and number of the section to redesignate it as a supplement to the FAR, and to add “—warranty by offeror,” to reflect the focus of the content, distinguishable from the FAR. We also propose minor administrative edits to comport with FAR formatting requirements.

We propose to retain section 315.606, Agency procedures, with no changes.

We propose to revise section 315.606-1, Receipt and initial review, to redesignate the paragraph number to comport with the appropriate FAR paragraph being implemented.

HHSAR Part 316—Types of Contracts

We propose to revise the authority citations for part 316, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 316.3, Cost-Reimbursement Contracts, section 316.307, Contract clauses, we propose to revise paragraph (a)(1), which prescribes clause 352.216-70, Allowable Cost and Payment for Hospitals, and requires contracting officer to insert the clause in solicitations and contracts when a cost-reimbursement contract with a hospital (profit or non-profit) is contemplated and when the clause 52.216-7 is inserted in the contract. We propose to revise the content with administrative edits for clarification. We also propose to revise the clause content with administrative edits to remove the reference to 45 CFR part 75. We also propose to remove paragraph (a)(2), which prescribes clause 352.216-70, Additional Cost Principles for Hospitals (Profit and Non-Profit), and requires contracting officer to insert the clause when a cost-reimbursement contract with a hospital (profit or non-profit) is contemplated. We propose to appropriately move this clause to part 331, Contract Cost Principles and Procedures.

In subpart 316.5, Indefinite-Delivery Contracts, section 316.505, Ordering, we propose to revise paragraph (b)(8) to update the title of the HHS Advocate for Competition to comport with FAR usage and to designate the HHS Advocate for Competition as the task-order and delivery-order ombudsman. The section is also updated to require each HHS HCA to designate, in writing, a task-order and delivery-order ombudsman and to provide the website on the HHS internet where this is listed.

We propose to remove subpart 316.6, Time-and-Materials, Labor-Hour, and Letter Contracts, and sections 316.603, Letter contracts, and 316.303-3, Limitations, as internal operational procedures or delegations that will be moved to the HHS Acquisition Manual (HHSAM).

HHSAR Part 317—Special Contracting Methods

We propose to remove part 317, Special Contracting Methods, and reserve the part as we propose to remove the current part content.

We propose to remove subpart 317.1, Multi-Year Contracting, and section 317.104, General, moving the content to the HHSAM as agency procedure.

We propose to remove sections 317.105, Policy, and 317.105-1, Uses, moving the content to the HHSAM as agency procedure.

We propose to remove section 317.107, Options, moving the content to the HHSAM as agency procedure.

We propose to remove section 317.108, Congressional notification, moving the content to the HHSAM as agency procedures.

We propose to remove subpart 317.2, Options, and section 317.204, Contracts, removing most of the content as duplicative to the FAR, and moving the remaining content to the HHSAM as agency procedures.

HHSAR Part 318—Emergency Acquisitions

We propose to add the authority citations for part 318, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add section 318.000 to identify that part 318 will set forth additional emergency acquisition flexibilities. We also propose to add section 318.001, Definition, and section 318.001-71, Agency delegation of determination, to prescribe the delegated authority to the HCA to utilize emergency acquisition flexibilities and make the agency head determinations as set forth in FAR part 18 and as defined in subpart 318.2.

We propose to add subpart 318.1, Available Acquisition Flexibilities, section 318.109, Priorities and allocations, and section 318.109-70, The Health Resources Priorities and Allocation System, to provide description and reference to subpart 311.6 to comport with FAR formatting.

We propose to add subpart 318.2, Emergency Acquisition Flexibilities, and section 318.202-70, Specific HHS flexibilities, to provide four specific definitions to reflect the delegated emergency authorities for: the Micro-purchase threshold; the Simplified acquisition threshold; Commercial product or commercial service treatment; and Simplified procedures for certain commercial products and commercial services.

We propose to add 318.270, Head of the agency delegations, to prescribe the delegated authority to the HCA to make the determinations in the listed FAR references, which include FAR 2.101, definitions of “Simplified acquisition threshold” and “Micro-purchase threshold, 12.102(f), 13.201(g), and 13.500(c)(1).

HHSAR Part 319—Small Business Programs

We propose to revise the authority citations for part 319, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 15 U.S.C. 631, et seq.; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add the authority of 15 U.S.C. 631, et seq. (the Small Business Act), as an authority pertaining to small business programs.

We propose to clarify subpart 319.2, Policies, by making minor administrative updates in citations, references, and titles of individuals.

We propose redesignating paragraph (d) of 319.201as paragraph (c) to align with FAR 19.201, as the topical coverage more appropriately falls under paragraph (c). We also add “Executive” to the title for the OSDBU Director.

We propose redesignating paragraph (e) of 319.201 as paragraph (d) to align with FAR 19.201, as the topical coverage more appropriately falls under paragraph (d). We are removing the language that dealt with SBS review of all acquisitions that are not set-aside. The matter is more appropriately addressed in internal procedural policy in the HHS Acquisition Manual (HHSAM).

In subpart 319.2, we are adding section 319.202 to provide the requirement that contracting officers document set-aside actions and recommendation on HHS Form 653, Small Business Program Review.

We propose to remove the coverage concerning unique mentor-protégé clauses as the HHS Mentor Protégé (MP) program is no longer in effect. Therefore, references to the program and related clauses have been deleted from the HHSAR. HHS follows the SBA Federal-wide guidance.

We propose adding subpart 319.8, Contracting With the Small Business Administration (the 8(a) Program), to provide coverage for the SBA partnership agreement. Under this subpart we are adding coverage at sections 319.800, General, 319.811, Preparing the contracts, and 319.811-370, SBA Partnership Agreement and contract clauses. This subpart prescribes two new clauses to be used when an 8(a) acquisition is processed pursuant to the Partnership Agreement: 352.219-72, HHS Notification of Competition Limited to Eligible 8(a) Participants, and for noncompetitive solicitations and awards, we propose adding the clause at 352.219-73, Notification of Section 8(a) Direct Awards, instead of the prescribed FAR clauses at 52.219-11, Special 8(a) Contract Conditions; 52.219-12, Special 8(a) Subcontract Conditions; and 52.219-17, Section 8(a) Award, as it governs HHS unique agency requirements.

HHSAR Part 322—Application of Labor Laws to Government Acquisitions

We propose to revise the authority citations for part 322, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 322 by adding a new subpart 322.1 and revising the existing subpart 322.8.

We propose to add subpart 322.1, Basic Labor Policies, to provide the procedures for the admittance of union representatives to HHS facilities. Under this subpart we propose to add section 322.101, Labor relations, as a header with no underlying text. We propose to add section 322.101-70, Admittance of union representatives to HHS facilities, to provide necessary admittance policy and procedures, and reporting requirements if entry is denied. In paragraph (a) it states that it is HHS policy to admit labor union representatives of contractor employees to HHS facilities to visit work sites and transact labor union business with contractors, their employees, or union stewards pursuant to existing union collective bargaining agreements. Their presence shall not interfere with the contractor's work progress under an HHS contract nor violate the safety or security regulations that may be applicable to persons visiting the facility. The union representatives will not be permitted to conduct meetings, collect union dues, or make speeches concerning union matters while visiting a work site. Paragraph (b) would require that whenever a union representative is denied entry to a facility or work site, the person denying entry shall make a written report to the HHS labor coordinator, the Office of the General Counsel (OGC), or corresponding labor advisor, with a copy to the cognizant contracting officer within two working days after the request for entry is denied. The report shall include the reason(s) for the denial, the name of the representative denied entry, the union affiliation and number, and the name and title of the person that denied the entry.

We propose to revise subpart 322.8, Equal Employment Opportunity, to include a new section 322.808, Complaints. The new section would require that contractors shall, in good faith, cooperate with HHS in investigations of Equal Employment Opportunity (EEO) complaints processed pursuant to 29 CFR part 1614 and in accordance with clause 352.222-70 as prescribed in this subpart.

We propose to revise section 322.810, Solicitation provisions and contract clauses, to redesignate the paragraph from (h) to (e) to properly align with the FAR, and to add “and Anti-Harassment” to the title of the clause, 352.222-70, so the title of the clause would read “Contractor Cooperation in Equal Employment Opportunity and Anti-Harassment Investigations.” The clause is prescribed to be included in solicitations, contracts, and order that include the clause at FAR 52.222-26, Equal Opportunity.

HHSAR Part 323—Environment, Sustainable Acquisition, and Material Safety

We propose to revise the authority citations for part 323, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 323 by updating the header of the part to “Environment, Sustainable Acquisition, and Material Safety,” to align with the title for FAR part 23 recently updated effective May 22, 2024, via FAR Case 2022-006 (RIN 2900-AO43) final rule (89 FR 30212). Additionally, we propose moving text from existing sections to a new subpart 323.3 to properly align with the FAR, and to redesignate existing subpart 323.71 to 323.1 as described below.

We propose to remove sections 323.7000, 323.7001, and 323.7002 and move the coverage under a new subpart 323.3 where it will align with the FAR coverage concerning hazardous material identification.

We propose to revise subpart 323.71, Sustainable Acquisition Requirements, by renumbering and retitling the header for the subpart as 323.1, Sustainable Products and Services. This aligns with the updated FAR subpart title and numbering. We propose to remove sections 323.7101 and 323.7102 as internal agency procedures that will be updated and moved to the HHSAM. The remaining sections, 323.7100 and 323.7103, would be renumbered as 323.103-70 and 323.109-70, respectively to appropriately align with the FAR.

In proposed section 323.103-70, Policy—Sustainable Acquisition Plan, the existing text is removed as unnecessary and redundant to the FAR. A new paragraph (a) is added to provide that contracting officers may, for new contracts and orders above the micro-purchase threshold, insert an evaluation factor on the offeror's Sustainable Action Plan in the solicitation. And a new paragraph (b) is added to require that offerors, when the solicitation includes the provision prescribed at 323.109-70 ( i.e., the newly numbered 352.223-70, Instructions to Offerors—Sustainable Acquisition Plan), offerors shall include a Sustainable Acquisition Plan in their technical proposal addressing sustainable products for services for delivery under any resulting contract, and that the contracting officer shall incorporate the final Sustainable Acquisition Plan into the contract.

In proposed section 323.109-70, Solicitation provision, the prescribed provision number is updated to reflect 352.223-70, and the title is updated to reflect “Instructions to Offerors—Sustainable Acquisition Plan.”

We propose to add subpart 323.3, Hazardous Material Identification, Material Safety Data, and Notice of Radioactive Materials, to reflect the revised FAR header at FAR subpart 23.3, and we propose to add underlying sections 323.300 and 323.304-70. The new subpart aligns with the FAR and adds updated language moved from sections 323.7000, 323.7001, and 323.7002. Section 323.300, Scope of subpart, identifies this subpart provides procedures for administering safety and health requirements. In section 323.304-70, Contract clause, clause 352.223-71, Safety and Health, is prescribed to be inserted in solicitations and contracts that involve hazardous materials or hazardous operations and details for which types of requirements.

HHSAR Part 324—Protection of Privacy and Freedom of Information

We propose to revise the authority citations for part 324, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to make only limited revisions at this time to HHSAR part 324 as this part will be updated through future rulemaking. To align with FAR numbering conventions in FAR subpart 24.1, we propose to renumber 324.103 to 324.103-70 and renumber 324.104 to 324.103-71. We propose to amend section 324.105, Contract clauses, by renumbering it to 324.104 to align with the FAR and revising paragraph (b) to add at the end of the sentence for the prescription of HHSAR clause 352.224-71, Confidential Information, the phrase “. . . and in solicitations, contracts, and orders that include the clause at 352.227-71, Rights in Data—Supplement—Exceptional Circumstances.” We also propose in this sentence to remove the word “to” in front of “third party information” so it would read “to Government or third party confidential information.”

HHSAR Part 325—Foreign Acquisition

We propose to revise the authority citations for part 325, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add HHSAR part 325 to provide agency policies and procedures and the restrictions on Make Personal Protective Equipment (PPE) in America. This rule would add subpart 325.71, Make PPE in America Act Restrictions on Foreign Acquisition of Personal Protective Equipment, and underlying sections 325.7100 through 325.7103 as described below.

In section 325.7100, Scope of subpart, it indicates that the subpart contains restrictions on the acquisition of certain personal protective equipment as required by the Make PPE in America Act (Pub. L. 117-58) for solicitations and contracts issued by HHS (among other agencies not included under the purview of this regulation). This subpart would codify the class deviation to the HHSAR issued by the HHS Senior Procurement Executive on February 9, 2023, that implemented the Make PPE in America Act, Division G, Title IX, Subtitle C, secs. 70951-70953 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58), dated November 15, 2021. On November 15, 2021, the President signed, the Infrastructure Investment and Jobs Act (IIJA). As part of the IIJA, Congress enacted the Make PPE in America Act (the Act). In promulgating the Act, Congress found, among other things, that the COVID-19 pandemic exposed the vulnerability of the United States' supply chains with respect to PPE and the lack of domestic production of PPE, including the components and materials thereof. To meet the needs for a long-term investment strategy for the domestic production of PPE items critical to the U.S. national response to a public health emergency, including, but not limited to, the COVID-19 pandemic, the Act requires action by HHS, the Department of Homeland Security, and the Department of Veterans Affairs (the covered agencies). To incentivize domestic manufacturing of PPE, the Act imposes certain requirements for contracts awarded by the covered agencies for the procurement of PPE.

The class deviation issued by the Senior Procurement Executive implemented the tenets of the Act applicable to HHS in advance of rulemaking. This rule seeks public comment on the proposed language to be added to the HHSAR that HHS has been following and in effect at the agency since February 9, 2023.

In section 325.7101, Definitions, we propose six definitions to ensure common understanding and meaning as used in this part—component, domestic personal protective equipment, foreign-made domestic personal protective equipment, foreign personal protective equipment, personal protective equipment, and United States.

We propose to add section 325.7102, Restrictions on certain personal protective equipment, as a header with no text.

In section 325.7102-1, Restrictions, certain restrictions are identified that implement section 70952 of the Make PPE in America Act, and they apply to all contracts and orders for the purchase of personal protective equipment. These restrictions include the requirement for contracting officers to purchase domestic personal protective equipment (PPE), except as provided in section 325.7102-2, Exceptions. And the text provides that any contract for PPE shall have a base period of performance of at least two years, plus any option periods, as required by law.

In section 325.7102-2, Exceptions, paragraph (a) provides that acquisitions of PPE in certain categories are not subject to the restrictions in section 325.7102-1, to include PPE where the HHS Secretary has maximized sources for foreign-made domestic PPE, and where the HHS Secretary certifies every 120 days that it is necessary to procure PPE under alternative procedures to respond to the immediate needs of a public health emergency. Other exceptions set forth in paragraph (b) include an item of PPE or component thereof, including those described in paragraph (a), that is, or includes, a material listed in FAR 25.104 as one for which a nonavailability determination has been made; or to which the HHS Secretary—

• Determines that a sufficient quantity of a satisfactory quality that is grown, reprocessed, reused, or produced in the United States cannot be procured as, and when, needed at United States market prices; and
• Certifies every 120 days that it is necessary to procure PPE to respond to the immediate needs of a public health emergency.

Under paragraph (c), the HHS Secretary is authorized to make the certification in paragraphs (a) and (b) or the nonavailability or unreasonable cost determination; supporting documentation requirements and approval levels are further outlined for the public.

In section 325.7103, Solicitation provisions and contract clauses, paragraph (a), clause 352.225-70, Made in America—Personal Protective Equipment, is prescribed to be inserted in solicitations and contracts, regardless of dollar value, when procuring any item covered under 325.7102-1(a). And in paragraph (b), provision 352.225-71, Made in America Certificate—Personal Protective Equipment, would be required to be inserted in solicitations containing the clause at 352.225-70.

HHSAR Part 326—Other Socioeconomic Programs

We propose to revise the authority citations for part 326, for the reasons set forth in the discussion and analysis section and as described below, to read as follows: 5 U.S.C. 301; 25 U.S.C. 47; 25 U.S.C. 1633; 25 U.S.C. 5301 et seq.; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; 42 U.S.C. 2003 and 48 CFR 1.301 through 1.304. We propose to retain the existing authorities of 5 U.S.C. 301; 25 U.S.C. 47; 25 U.S.C. 1633; and 42 U.S.C. 2003 as applicable to the subject matter and requirements set forth in the part. We removed the authority citation for 41 U.S.C. 253(c)(5) as it no longer exists. Additionally, we propose to add the authority citations for 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304 as set forth in the discussion and analysis section above, to align part 326 with the other parts set forth in 48 U.S.C. chapter 3. We propose to add one additional authority under which Public Law 93-638 was recodified: 25 U.S.C. 5301 et seq., as it sets forth requirements that impact acquisitions under 25 U.S.C. chapter 46, Indian Self-Determination and Education Assistance.

We propose to make minor administrative and non-substantive technical changes to the part to update numbering conventions to FAR drafting standards, to spell out words, correct capitalization, and update references, including revising the table of contents and numbering of current subparts to properly align with the FAR and conform to FAR drafting conventions as follows:

• Revise the current subpart numbering for subpart 326.5, Indian Preference in Employment, Training, and Subcontracting Opportunities, to subpart 326.70. The underlying sections and subsections would be renumbered accordingly. Other numbering and minor administrative edits are made to comport with FAR drafting guidelines.
• Revise the current subpart numbering for subpart 326.6, Acquisitions Under the Buy Indian Act, to subpart 326.71. The underlying sections and subsections would be renumbered accordingly. Other numbering and minor administrative edits are made to comport with FAR drafting guidelines.
• Revise the current subpart numbering for subpart 326.7, Acquisitions Requiring the Native American Graves Protection and Repatriation Act, to subpart 326.72. The underlying sections and subsections would be renumbered accordingly.

We also propose to make certain limited revisions to update the part:

• In section 326.501 (proposed to be renumbered to 326.7001, we updated to the current citations.
• In section 326.502 (proposed to be renumbered and retitled to 326.7002, Additional Definitions), we propose the following changes: (1) delete section 326.502(c) and (d) as duplicative of FAR 26.101; (2) add definitions to reflect those at25 U.S.C. 3504; (3) revised paragraph (b); (4) redesignate paragraphs (a), (b), (e), and (f), and; (4) revise this section by renumbering 326.502 as shown to comport with the FAR drafting guidelines. We propose to add the following definitions: construction contract, construction programs, contract funding, direct program costs, indirect costs, indirect cost rate, mature contract, Secretary, self-determination contract, state education agency, Tribal organization or as relevant to the part and the usage from the cited authorities.
• In 326.505 (proposed to be renumbered to 326.7005), we propose to revise the header title to read “Contract clauses” in lieu of “Applicability” as the section prescribes two clauses: 352.226-70, Indian Preference, and 352.226-71, Indian Preference Program, and the naming convention for the header comports with the FAR.
• In subpart 326.6, Acquisitions Under the Buy Indian Act, we have made minimal revisions.Note: An update to subpart 326.6, Acquisitions Under the Buy Indian Act, took place recently. The update was published in the Federal Register on 1/13/2022, with an effective date of March 14, 2022. The rule is intended to establish Buy Indian Act acquisition policies and procedures for HHS that are consistent with rules proposed and/or adopted by the Department of the Interior (DOI). Due to the recent HHSAR changes and the tremendous collaborative effort to implement time sensitive legislative mandates, we are not proposing any substantive changes to this subpart. However, there are minor technical changes that are necessary to integrate this collaborative effort into the HHSAR update project to be FAR compliant. These changes include the following:

○ We propose to revise this subpart by renumbering 326.6 as shown to comport with the FAR drafting guidelines. Specifically, we recommend this subpart be referenced as 326.71 since it is unique to HHS and has no correlation to the programs under the FAR part. Headings and references within the subpart have been updated to reflect the new numbering scheme. The underlying sections and subsections would be renumbered accordingly. Other numbering and minor administrative edits are made to comport with FAR drafting guidelines.

○ In section 326.602 (proposed to be renumbered to 326.7102), we propose to revise the header title to “Applicability” and to add the text that will be moved from 326.602-1.

○ We propose to remove 326.602-1, Scope of part. The placement and text for this material more properly falls under the proposed section 326.7102, Applicability.

○ In section 326.604-2, Procedures for Acquisitions under the Buy Indian Act (proposed to be renumbered to 326.7104-2), we propose to remove paragraph (e) in its entirety and move the prescriptions for clauses under a new proposed section 326.7104-5, Solicitation provisions and contract clauses, to comport with FAR drafting convention and style.

○ We propose to add section 326.7104-4, Performance and payment bonds. This text is moved from a section proposed to be removed, 326.605-2, Performance and payment bonds, to reflect the requirements of 25 U.S.C. 47a and to permit contracting officers to accept alternative forms of security in lieu of performance and payment bonds if a determination is made that such forms of security provide the Government with adequate security for performance and payment.

○ We propose to renumber and retitle section 326.605, Contract Requirements, to 326.7105, Solicitation provisions and contract clauses, and move the prescriptions for the existing provisions and clauses in 326.604-2(c) to this section and renumber the provisions and clauses accordingly: 352.226-73, Notice of Indian Small Business Economic Enterprise Set-Aside; 352.226-74, Notice of Indian Economic Enterprise Set-Aside; 352.226-75, Indian Economic Enterprise Subcontracting Limitations; and 352.226-76, Indian Economic Enterprise Representation; and 352.226-75, Indian Economic Enterprise Subcontracting Limitations.

○ We propose to remove section 326.605-2, Performance and payment bonds. Updated text concerning the requirements under this paragraph is proposed to move to section 326.7104-4, Performance and payment bonds, as the placement earlier in the subpart is more appropriate with the last section of the subpart reflecting any prescribed provisions or clauses to comport with FAR drafting conventions.

○ In section 326.606-2, Representation provision, we propose to renumber it to 326.7106-2 based on the renumbering of all sections within the subpart, and adding one requirement in paragraph (c) for the contracting officer to include the documentation in the file, when the head of the contracting activity is informed in writing of all suspected Indian Economic Enterprise (IEE) misrepresentations by an offeror or failure to provide written notification of a change in IEE eligibility.

• In subpart 326.7, Acquisitions Requiring the Native American Graves Protection and Repatriation Act, we propose to revise this subpart by renumbering it as subpart 326.72 to comport with the FAR drafting guidelines and reflect as a unique HHS supplement. The underlying sections and subsections would be renumbered accordingly. Other numbering and minor administrative edits are made to comport with FAR drafting guidelines.

HHSAR Part 327—Patents, Data, and Copyrights

We propose to revise the authority citations for part 327, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 327.3, Patent Rights Under Government Contracts, we propose to revise section 327.303 by renumbering it to 327.303-70 and changing the header to read “Contract clause” in lieu of “Solicitation provision and contract clause” since it prescribes only one clause. We also propose to update the text to reflect the revised numbering and title of clause 352.227-11, Patent Rights—Exceptional Circumstances, to now read, “352.227-70, Patent Rights—Supplement—Exceptional Circumstances,” and to prescribe its use in solicitations, contracts, and orders that include the FAR clause at 52.227-11, Patent Rights—Ownership by the Contractor. Instructions to the contracting officer that are internal operating procedures are removed and will be revised and moved to the HHSAM.

In subpart 327.4, Rights in Data and Copyrights, we propose to remove section 327.404-70, Solicitation provision and contract clause, as the prescription is being moved to section 327.409 where all the subpart's prescriptions will be located.

We propose to revise section 327.409, Solicitation provision and contract clauses, by renumbering it to 327.409-70 and revising the header title to “Contract clauses” to reflect that only contract clauses are prescribed in the subpart. In paragraph (a) we propose to update the citation to the prescribed clause 352.227-14 and renumber it to “352.227-71” to comport with FAR drafting guidelines, and to retitle the clause to “Rights in Data—Supplement—Exceptional Circumstances.” We also propose to prescribe its use in solicitations, contracts, and others that include the FAR clause at 52.227-14, Rights in Data—General, and have updated the grammar and structure of the sentence to provide clarity.

We propose to add paragraph (b) to set forth the prescription for the clause moved from the removed section 327.404-70, and renumber the clause from “352.227-70, Publications and Publicity” to “352.227-72, Publications and Publicity.”

HHSAR Part 330—Cost Accounting Standards

We propose to revise the authority citations for part 330, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 330.2, CAS Program Requirements, in section 330.201-5, Waiver, we propose to revise his section to restructure and clarify the sentence that states the Senior Procurement Executive is authorized to exercise the waiver authority under FAR 30.201-5(a)(1) when the conditions at FAR 30.201-5(a)(1) are met. We propose to remove the coverage concerning the Operating and Staff Divisions and forwarding the waiver requests to the Senior Procurement Executive as it is internal operating procedures more appropriate to the HHS Acquisition Manual (HHSAM).

HHSAR Part 331—Contract Cost Principles and Procedures

We propose to revise the authority citations for part 331, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

In subpart 331.1, Applicability, we propose to revise section 331.101-70, Salary rate limitation, to renumber it to section 331.170, to align with FAR drafting convention numbering as there is no existing FAR section to intelligibly implement the required HHS policy and numbering as “331.170” places it appropriately as a supplement to subpart 331. We also propose to remove the paragraph (a) designation as there is no paragraph (b), and to remove the reference to a fiscal year as not necessary to the policy requirement. We also propose to revise the paragraph to update and provide the name of the Rates of Basic Pay for the Executive Schedule (EX) Level II, that is found on the Office of Personnel Management website.

We also propose to remove the designation of paragraph (b) as the text will be contained in a new proposed section. We propose to add section 331.101-70, Contract clause, to contain the prescription for clause 352.231-70, Salary Rate Limitation, that was previously contained in paragraph (b) under the prior existing section 331.101-70, and to fix sentence construction and punctuation to provide clarity.

HHSAR Part 332—Contract Funding

We propose to revise the authority citations for part 332, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 332, Contract Financing, by adding introductory sections 332.006, 332.006-1, and 332.006-4 to align with the FAR.

We propose to add section 332.006, Reduction or suspension of contract payments upon finding of fraud, as a section header with no text to align with the FAR.

We propose to add section 332.006-1, General, paragraph (b), to provide that the Senior Procurement Executive (SPE) is authorized to make the determination there is substantial evidence that a contractor's request for advance, partial, or progress payments is based on fraud, and may direct further payments to the contractor be reduced or suspended, in accordance with FAR 32.006 and that the authority may not be redelegated.

And we propose to also add section 332.006-4, Procedures, paragraph (b), to align with the FAR and to designate the Remedy Coordination Official (RCO) for HHS as the SPE, who shall carry out the responsibilities in FAR 32.006-4(b). We add paragraph (e) under this section to implement the FAR and stipulate that the RCO is authorized to carry out the responsibilities of the agency head in FAR 32.006-4(e) to notify the contractor of the reasons for the recommended action and of its right to submit information within a reasonable period of time in response to the proposed action under FAR 32.006. In paragraph (e)(1), HHS sets forth the procedures to be followed for the notice of proposed action and the requirement to send it to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the notice of proposed action may be sent to any partner, principal, officer, director, owner or co-owner, or joint venture. We also propose to set forth the due process rights for contractors to be afforded an opportunity to appear before the RCO to present information or argument in person or through a representative and to supplement the oral presentation with written information and argument. In paragraph (e)(2), additional processes and procedures for due process rights are established including that the proceedings will be conducted in an informal manner without the requirement for a transcript. It also would state that if the RCO does not receive a reply from the contractor within 30 calendar days, the RCO will base his or her recommendations on the information available. The RCO is required to make a determination whether or not substantial evidence of fraud exists.

And, in paragraph (g) under section 332.006-4, we propose to require that the SPE shall provide a copy of each final determination and the supporting documentation to the contractor, the RCO, the contracting officer, and the HHS Office of the Inspector General (OIG).

We propose to add subpart 332.2, Commercial Product and Commercial Service Purchase Financing, and the underlying section 332.202, General, to provide that the SPE is authorized to approve actions for commercial item purchase financing pursuant to FAR 32.202.

In subpart 332.4, we propose to revise the subpart header title from “Advance Payments for Non-Commercial Items” to “Advance Payments for Other Than Commercial Acquisitions” to align with the updated title in the FAR. In section 332.402, General, we propose to revise the sentence for clarity that the head of the contracting activity (HCA) is authorized to make determinations related to advance payments and that the authority may not be redelegated. We propose to remove section 332.407, Interest, as this delegation by the agency head to the HCA to make the determination required by FAR 32.407(d) is being moved to the HHSAM.

In subpart 332.5, Progress Payments Based on Costs, we propose to correct the header title listed in the HHSAR to match the FAR by adding an “s” to the existing word “Cost.” In section 332.501-2, Unusual progress payments, we propose to revise the sentence to comport with FAR drafting guidelines and style, and rephrased the same delegation that authorizes the HCA to approve unusual progress payments and to stipulate that the authority may not be relegated.

In subpart 332.7, Contract Funding, we propose to remove section 332.702, Policy, and move it to the HHSAM as internal operational policy.

We propose to retain the underlying sections 332.703-1, General, and 332.703-71, Incrementally funded cost-reimbursement contracts, as important policy and procedures contracting officers shall follow when administering incremental funding under an HHS contract and the considerations contracting officers must examine when approving the use of incrementally funded cost-reimbursement contracts. We also propose to redesignate 332.703-71 to 332.703-70.

We propose to revise the numbering of section 332.703-72, Incremental Funding Table, to “332.703-71” based on the redesignation of 332.703-71 to 332.703-70.

We propose to revise the header title of section 332.706, Solicitation provision and contract clauses, to “Contract clauses” to align with the FAR.

In subpart 332.70, Electronic Submission and Processing of Payment Requests, and the underlying sections 332.7001, 332.7002, and 332.7003, we make minor editorial formatting and capitalization corrections. In section 332.7003, Contract clause, we add language that states the clause at 352.232-71, Electronic Submission of Payment Requests, is to be used in all solicitations and contracts, unless an exception at HHSAR 332.7002(a) or (b) applies.

HHSAR Part 333—Protests, Disputes, and Appeals

We propose to revise the authority citations for part 333, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 333 to revise text and add sections as described below.

In subpart 333.1, Protests, we propose to revise section 333.102, General, to make minor typographical and editorial updates and remove the paragraph designation of (g)(1).

In section 333.103, Protests to the agency, we propose to substantially revise the content to provide clarity by identifying that the contracting officer prepares the determination pursuant to FAR 33.103(f)(1) and to state that the contracting activity's designated protest official control officer, in consultation with the cognizant HHS legal office, may approve the determination subject to the procedures in 333.103-70.

We propose to add section 333.103-70, Procedures—protests to HHS, paragraphs (a) through (d), to provide agency procedures on how HHS will handle protests submitted to the agency. This includes providing information on protests to the contracting officer, and a higher-level independent review or appeal of a contracting officer decision for protests files directly with the agency. We also propose to add language at paragraph (d) that if protests are pending with the contracting officer and have not been decided yet, an independent review of a protest filed pursuant to paragraph (a)(2) will not be considered.

We propose to add section 333.103-71, Agency actions on specific protests, to provide that the following types of protests may be dismissed without consideration of the merits or may be forwarded to another agency for appropriate action:

• Contract administration. Disputes between a contractor and HHS are resolved under the disputes clause (see the Dispute statute, 41 U.S.C. chapter 71).
• Small business size standards and standard industrial classification. These are handled by the Small Business Administration.
• Small business certificate of competency program. A protest made under section 8(b)(7) of the Small Business Act, or in regard to any issuance of a certificate of competency or refusal to issue a certificate under that section, is not reviewed in accordance with bid protest procedures unless there is a showing of possible fraud or bad faith on the part of Government officials.
• Decision not to set-aside under section 8(a) of the Small Business Act. The decision to place or not to place a procurement under the 8(a) program is not subject to review unless there is a showing of possible fraud or bad faith on the part of Government officials or that regulations may have been violated (see 15 U.S.C. 637(a)).
• Affirmative determination of responsibility by the contracting officer. An affirmative determination of responsibility will not be reviewed unless there is a showing that such determination was made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not met.
• Contracts subject to FAR subpart 22.6—Contracts for Materials, Supplies, Articles, and Equipment. Challenges concerning the legal status of a firm as a regular dealer or manufacturer within the meaning of 41 U.S.C. chapter 65 are determined solely by the procuring agency, the SBA (if a small business is involved), and the Secretary of Labor (see FAR subpart 22.6).
• Subcontractor protests. The contracting agency will not consider subcontractor protests except where HHS determines it is in the interest of the Government.
• Judicial proceedings. The contracting agency will not consider protests where the matter involved is the subject of litigation before a court of competent jurisdiction.
• Alternative dispute resolution. Bidders/offerors and HHS contracting officers are encouraged to use alternative dispute resolution (ADR) procedures to resolve protests at any stage in the protest process. If ADR is used, HHS will not furnish any documentation in an ADR proceeding beyond what is required by FAR 33.103.

In subpart 333.2, Disputes and Appeals, we propose to add section 333.201, Definitions, to provide the definition for Agency board of contract appeals for HHS means the Civilian Board of Contract Appeals (CBCA).

We propose to revise section 333.203, Applicability, to make minor editorial corrections, to use the acronym CBCA, and to provide an updated address for each method of filing—e-file, U.S. Postal Service, or Overnight or Courier Delivery.

In section 333.209, Suspected fraudulent claims, we propose to add to the end of the existing sentence that the contracting officer may submit any instance of a contractor's suspected fraudulent claim for potential referral to the Department of Justice through the head of the contracting activity (HCA).

We propose to add section 333.214, Alternative dispute resolution (ADR), to state that contracting officers and contractors are encouraged to use alternative dispute resolution (ADR) procedures, and that guidance on ADR may be obtained at the U.S. Civilian Board of Contract Appeals website at https://www.cbca.gsa.gov.

And in section 333.215-70, Contract clauses, we propose to revise paragraph (b) to revise the phrase, “commercial item” to “commercial product or commercial service” to comport with the updated usage of the terms in the FAR.

HHSAR Part 334—Major System Acquisition

We propose to revise the authority citations for part 334, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 334 to make minor editorial changes to provide clarity to the sentence structure and to add needed references.

In section 334.201, Policy, introductory sentence, we are adding the acronym “(EVMS)” after earned value management system to permit usage of the acronym later in the section. In paragraph (b), we remove the fully spelled out term and use the EVMS acronym.

In section 334.202, Integrated Baseline Reviews (IBRs), we remove the acronym usage in the header. In paragraph (a), we reconstructed the sentence for clarity by adding the term “Integrated Baseline Review (IBR)” and a reference to FAR 34.201(a), and we remove the phrase “normally should read” and replace it with “is usually”.

HHSAR Part 335—Research and Development Contracting

We propose to revise the authority citations for part 335, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 335 to make minor editorial changes to provide clarity, to remove material more appropriate to internal agency procedures in the HHSAM, to add needed FAR references, and to remove two sections that are unnecessary.

In section 335.070-1, Policy, paragraph (a), we propose to remove the last sentence as it contains a general statement concerning the Government's interest that is unnecessary and vague. We propose to remove paragraph (c) as more appropriate to internal agency procedures that may be revised and moved to the HHSAM.

In section 335.070-2, Amount of cost-sharing, paragraph (a), we propose to add the phrase “appropriate (see FAR 16.303 and FAR 42.707)” to provide key FAR references.

We propose to remove sections 335.071, which is reserved, and 335.072, Key personnel. Section 335.071 was reserved during a previous rulemaking and is no longer required to be reserved. Section 335.072, Key personnel, is removed as internal agency guidance more appropriate to be revised and moved to the HHSAM.

HHSAR Part 336—Construction and Architect-Engineer Contracts

We propose to revise the authority citations for part 336, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 336 to remove one subpart and add a new subpart and make other necessary editorial changes.

We propose to remove subpart 336.1, General, and the underlying section 336.104, Policy, as the information repeats the FAR and also contains a general reference to internal agency Facilities Management guidance that is vague and more appropriate to place in the HHSAM as internal operational procedures.

We propose to add subpart 336.2, Special Aspects of Contracting for Construction, and sections 336.203 and 336.204, to provide policy on the use of Government estimates of construction costs and other policy and procedures on the disclosure of the magnitude of construction projects.

In section 336.203, Government estimate of construction costs, paragraph (a), we propose to require that the Government estimate must be designated “CUI Controlled by: HHS, [OPDIV/STAFFDIV designation” unless the nature of the information therein requires a security classification or other classification, in which event it shall be handled in accordance with applicable security regulations. The designation would only be removed when the estimate is made public in accordance with the procedures outlined in the section. In paragraph (b), if the acquisition is by sealed bidding, a sealed copy of the detailed Government estimate must be filed with the bids until bid opening. After the bids are read and recorded, the “CUI” designation, or other classification, must be removed and the estimate read and recorded in the same detail as the bids. In paragraph (c), we propose procedures governing the use of the marking if the acquisition is by negotiation.

In section 336.204, Disclosure of the magnitude of construction projects, we propose policy that requires the contracting officer to utilize the estimated price ranges defined in FAR 36.204(a) through (e) as further supplemented in paragraphs (f) through (h) in this section when identifying the magnitude of an HHS project in advance notices and solicitations. In paragraph (f), we propose that for estimated price ranges between $1,000,000 and $5,000,000, the contracting officer shall identify the magnitude of an HHS project in advance notices and solicitations in terms of the following price ranges:

• Between $1,000,000 and $2,000,000.
• Between $2,000,000 and $5,000,000.

In paragraph (g), the estimated price ranges are between $5,000,000 and $10,000,000. And in paragraph (h), for estimated price ranges greater than $10,000,000, the contracting officer shall identify the magnitude of an HHS project in advance notices and solicitations in terms of one of the following price ranges:

• Between $10,000,000 and $20,000,000.
• Between $20,000,000 and $50,000,000.
• Between $50,000,000 and $100,000,000.
• Between $100,000,000 and $150,000,000.
• Between $150,000,000 and $200,000,000.
• Between $200,000,000 and $250,000,000.
• More than $250,000,000.

In subpart 336.5, Contract Clause, we propose to make minor editorial revisions and to revise the header title of the subpart to “Contract Clauses” to align with the FAR.

In section 336.570, Contract clause, paragraph (a), we remove the word “all” before “design-build requirements” as it is unnecessary. In paragraph (b), we make minor capitalization corrections. We propose to remove paragraph (c) in its entirety as internal agency guidance that will be considered for the HHSAM and is unnecessary in the HHSAR.

HHSAR Part 337—Service Contracting

We propose to revise the authority citations for part 337, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 337 to provide updated agency policy and procedures to implement specific requirements concerning performance on HHS service contracts, and to add a new subpart 337.70 that provides the policy for the clauses prescribed by this part.

We propose to revise the header title of HHSAR part 337 from “Service Contracting—General” to “Service Contracting” to align with the FAR title.

We propose to remove subpart 337.1, Service Contracting—General, which currently contains prescriptions of key clauses required to be inserted into certain HHS solicitations and contracts. This coverage is proposed to be revised and moved to another new section specifically pertaining to prescriptions for contract clauses, 337.3306, as described below, to comport with FAR drafting standards and guidance.

We propose to add subpart 337.70, Services—Special Contract Requirements, to provide the policy and procedures applicable to the clauses prescribed under this part. We propose to add sections 337.7000, 337.7001, 337.7002, 337.7003, 337.7004, 337.7005, and 337.7006 as discussed below.

We propose to add section 337.7000, Prohibition on smoking in facilities during delivery of services to children, to detail the policy prohibition on smoking in certain facilities where certain federally funded children's services are provided pursuant to 20 U.S.C. 7181 (Pub. L. 107-110, the Pro-Children Act of 2001 (the Act)). Contractors are required to represent to the contracting officer and agree that by submission of its bid or offer and if awarded a contract for this requirement, the contractor agrees to comply with the requirements of the Act and the prohibition of smoking in facilities as specified in paragraph (a). The contractor shall enforce the provisions of the clause prescribed in 337.7006(a), and ensure that each of its employees, subcontractors, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. This section also outlines the penalties for failure to comply with the Act.

We propose to add section 337.7001, Reporting of child abuse by covered professionals and key definitions, to implement the requirements of Public Law 101-647, known as the Crime Control Act of 1990 (the Act) (34 U.S.C. 20341), which imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity as a covered professional, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse. Paragraph (c) details the reporting requirements, and paragraph (d) contains the requirement that the offeror shall represent that it understands that by submission of its bid or offer and if awarded a contract for a requirement, the Contractor agrees to comply with the requirements of the Act. Contracting officers shall ensure the requirements of clause 352.237-71 are flowed down to subcontractors at any tier.

We propose to add section 337.7002, Requirement for background checks—childcare services, to set forth the agency policy and requirement for background checks pursuant to Public Law 101-647, known as the Crime Control Act of 1990 (the Act) (34 U.S.C. 20351), requires that all individuals involved with the provision of childcare services to children under the age of 18 undergo a criminal background check. Any conviction for a sex crime, an offense involving a child victim, or a drug felony, may be grounds for denying employment or for dismissal of an employee providing any childcare services. This would require the contracting officer to provide the necessary information to the contractor regarding the process for obtaining the background check. And it contains the representation requirement that the offeror shall represent that it understands that by submission of its bid or offer and if awarded a contract for a requirement, the contractor agrees to comply with the requirements of the Act. Contracting officers shall ensure the requirements of clause 352.237-72 are flowed down to subcontractors at any tier.

We propose to add section 337.7003, Indian Child Protection and Family Violence Act-background investigations, to ensure protection of Indian children, and to implement requirements of the Indian Child Protection and Family Violence Act, Public Law 101-630 (25 U.S.C. 3201, et seq.), which prohibits employment, including personal service contracts, with anyone who has been convicted of any crime of violence when performance under a contract may require duties and responsibilities of a contractor, its employees, subcontractors, or third parties providing service under the contract that involve regular contact with or control over Indian children. The Act requires that a contractor and its employees and subcontractors, at any tier, be subject to a character and background investigation. This investigation is conducted by the Indian Health Service, Office of Human Resources. This section would require that as a prerequisite to providing services under a contract involving access to Indian children, contractors shall—

• Complete and sign a declaration concerning the background of employees or subcontractors providing such services as required by the terms and conditions of the contract;
• Provide information as required by the contracting officer to ascertain such information about its employees, subcontractors, and third parties providing services under the contract;
• Report convictions of any crime of violence immediately to the contracting officer that involve such employees, subcontractors, or third parties, who may be employed or are currently employed under the contract; and
• Flow down clause the clause prescribed at 337.7006(d), 352.337-73, Indian Child Protection and Family Violence Act—Background Investigations, into all subcontracts, at any tier.

We propose to add section 337.7004, Non-discrimination in service delivery, to implement HHS policy that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). It would include a representation requirement that the offeror shall represent that it understands that by submission of its bid or offer and if awarded a contract for a requirement, the contractor agrees to comply with the requirements of the policy. Contracting officers shall ensure the requirements of clause 352.237-74 are flowed down to subcontractors at any tier.

We propose to add section 337.7005, Key personnel, to implement HHS policy on identification and use of key personnel when considered essential to work performance under an HHS contract. We propose to require contractors to provide notice if they divert proposed personnel deemed key personnel. At least 30 days prior to the contractor voluntarily diverting any of the specified individuals in a contract to other programs or contracts, the contractor shall notify the contracting officer and submit a justification for the diversion or replacement, and request to replace the individual. It would also outline notification, justification, and replacement requirements.

We propose to add section 337.7006, Contract clauses, to provide the prescription for the use of the following clauses in both solicitations and contracts as required by each prescription:

• 352.237-70, Nonsmoking Policy—Delivery of Services to Children
352.237-71, Reporting of Child Abuse
• 352.237-72, Requirement for Background Checks
352.237-73, Indian Child Protection and Family Violence Act—Background Investigations
• 352.237-74, Non-Discrimination in Service Delivery
• 352.237-75, Key Personnel

HHSAR Part 341—Acquisition of Utility Services

We propose to add authority citations for part 341, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add HHSAR part 341, Acquisition of Utility Services, and subparts 341.1, General, and 341.5, Solicitation Provision and Contract Clauses, to provide policy on purchases of utility services from nonregulated and regulated utility suppliers, and the acquisition of energy when purchased as a commodity in accordance with FAR part 41.

We propose to add subpart 341.1, General, and section 341.102, Applicability, paragraph (a), to implement FAR 41.102(a) and to state that this part applies to purchases of utility services from nonregulated and regulated utility suppliers when a delegation of authority from GSA for those services is requested and obtained. In paragraph (b)(4), we provide the explanation that the acquisition of energy, such as electricity, and natural or manufactured gas, when purchased as a commodity is considered to be acquisitions of supplies rather than utility services as described in FAR part 41.

We propose to add subpart 341.5, Solicitation Provision and Contract Clauses, and sections 341.501 and 341.501-70. In section 341.501, Solicitation provision and contract clauses, we propose to add the section header with no text for alignment with the FAR where HHS supplements coverage in an underlying section. In section 341.501-70, Disputes—utility contracts, we propose to require contracting officers to insert the clause at 352.241-70, Disputes—Utility Contracts, in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission, to provide the notice to the contractor on specific disputes requirements concerning utilities. In the clause, it provides that the requirements of the Disputes clause at FAR 52.233-1 are supplemented to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to any determinations by the independent regulatory body having jurisdiction ( i.e., the Federal Energy Regulatory Commission, a state-wide agency, or an agency with less than state-wide jurisdiction when operating pursuant to state authority. The body has the power to fix, establish, or control the rates and services of utility suppliers.).

HHSAR Part 342—Contract Administration and Audit Services

We propose to revise the authority citations for part 342, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise HHSAR part 342 to update its header title, and to add subpart 342.2.

We propose to revise and update the header title of part 342 from “Contract Administration” to “Contract Administration and Audit Service” to align with the FAR part title.

We propose to add subpart 342.2, Contract Administration, and sections 342.270, 342.271, and 342.272, to set forth policy and procedures with respect to the use of Contracting Officer's Representatives (CORs) in contract administration, the Administrative Contracting Officer's (ACO) role in contract administration and delegated functions, and prescribed agency contract clauses.

We propose to add section 342.270, Contracting Officer's Representatives role in contract administration, to establish that a contracting officer may designate a qualified person to be the Contracting Officer's Representative (COR) for the purpose of performing certain technical functions in administering a contract. Paragraph (b) would provide that the COR may act solely as a technical representative of the contracting officer and is not authorized to perform any function that results in a change in the scope, price, terms, or conditions of the contract, and that the designation must be in writing and a copy of the designation must be furnished to the contractor and the ACO.

We propose to add section 342.271, Administrative Contracting Officer's role in contract administration and delegated functions, to provide the department's use of an Administrative Contracting Officer Letter of Delegation, which means a delegation of functions as set forth in FAR 42.202 and 42.302 and this section, that is issued by a contracting officer to delegate certain contract administration or specialized support services. This section would limit the ACO's authority to the actions detailed in the delegation, state that they shall be set forth in a written ACO Letter of Delegation issued by the contracting officer to the accepting contract administration office and designated administrative contracting officer. This section would require that the ACO Letter of Delegation shall contain the information required in FAR 42.202(a) through (c) and identify the responsibilities and limitations of the ACO. A copy of the delegation will be furnished to the contractor and the ACO.

And we propose to add section 342.272, Contract clauses, to prescribe two clauses to be used: The clause at 352.242-70, Administrative Contracting Officer, to be inserted in solicitations and contracts expected to exceed the micro-purchase threshold, when contract administration is delegated, and the clause at 352.242-71, Government Construction Contract Administration, to be inserted in solicitations and contracts for construction expected to exceed the micro-purchase threshold, when contract administration is delegated

HHSAR Part 343—Contract Modifications

We propose to add authority citations for part 343, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add HHSAR part 343, Contract Modifications, and subpart 343.2, Change Orders, to provide agency policy on the definitization of unpriced change orders with an estimated value exceeding $5 million.

We propose to add subpart 342.2, Change Orders, and sections 343.204, Administration; 343.204-70, Definitization; and 343.205, Contract clauses.

We propose to add section 343.204, Administration, as a section header with no text, and the underlying section 343.204-70, Definitization, to establish policy with respect to the definitization of unpriced change orders with an estimated value exceeding $5 million. This section would require that unpriced change orders, when authorized by the contracting officer, shall contain a not-to-exceed price and requires a definitization schedules that provide for definitization by—

• The date after issuance of the change order may not exceed 180 days after the contractor submits a qualifying proposal); or
• The date on which the amount of funds paid to the contractor under the contract action is equal to more than 50 percent of the not-to-exceed price.

This section would also provide that if the contractor does not submit a timely qualifying proposal, the contracting officer may suspend or reduce progress payments under FAR 32.503-6 or take other appropriate action. The section would also provide a limitations on obligations in paragraph (b) that the Government shall not obligate more than 50 percent of the not-to-exceed price before definitization. However, if a contractor submits a qualifying proposal before 50 percent of the not-to-exceed price has been obligated by the Government, the limitation on obligations before definitization may be increased to no more than 75 percent. Exceptions are provided as authorized by the head of the contracting activity (HCA). The HCA may waive the limitations for unpriced change orders if the HCA determines that the waiver is necessary to support an emergency acquisition operation.

We propose to add section 343.205, Contract clauses, to provide agency policy that as authorized in the introductory text of clauses FAR 52.243-1, Changes—Fixed-Price; 52.243-2, Changes—Cost-Reimbursement; and 52.243-4, Changes, and in the prescription at FAR 43.205(c) for FAR 52.243-3, Changes—Time-and-Materials or Labor-Hours, the contracting officer may vary the period within which a contractor must assert its right to an equitable adjustment, but the extended period shall not exceed 60 calendar days, unless approval is one level above the contracting officer.

HHSAR Part 344—Subcontracting Policies and Procedures

We propose to add authority citations for part 344, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add HHSAR part 344, Subcontracting Policies and Procedures, and underlying subparts 344.2, Consent to Subcontracts, and 344.3, Contractors' Purchasing Systems Reviews.

We propose to add subpart 344.2, Consent to Subcontracts, and section 344.202-2, Considerations, paragraph (a), to require, in addition to the considerations outlined in FAR 44.202-2(a), that the contracting officer responsible for consent must review the request and supporting data submitted by the contractor and document whether the contractor adequately substantiated the selection as being fair, reasonable, and representing the best value to the Government where other than the lowest price is the basis for subcontractor selection.

We propose to add subpart 344.3, Contractors' Purchasing Systems Reviews, and section 344.303-70, Additional contractors' purchasing systems reviews, to identify that special attention shall also be paid to reviewing documentation of commercial products and commercial services determinations. Additionally, the section states that if the contractor has an approved purchasing system as defined in FAR 44.101, the contracting officer shall not withhold consent to subcontract without written coordination of the program manager or comparable requiring activity official. This ensures that a decision to withhold consent is made in concert with the full awareness of program officials who have overall programmatic, budget and schedule responsibilities for acquisitions that may be impacted by a decision to withhold consent.

HHSAR Part 345—Government Property

We propose to add authority citations for part 345, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add HHSAR part 345, Government Property, and subpart 345.1, General, to provide agency policy and procedures on contractors' property management system compliance.

In subpart 345.1, General, we propose to add sections 345.105-70 and 345.107, Contract clauses. We propose to add section 345.105-70, Contractors' property management system compliance—policy and procedures, to provide definitions for acceptable property management system, property management system, and significant deficiency when complying with agency policies and procedures. In paragraph (a), policy is provided that the cognizant contracting officer, in consultation with the property administrator, shall determine the acceptability of the system and approve or disapprove the system, and pursue correction of any deficiencies. Paragraph (c) would provide that in evaluating the acceptability of a contractor's property management system, the contracting officer, in consultation with the property administrator, shall determine whether the contractor's property management system complies with the system criteria for an acceptable property management system as prescribed in the clause at 352.245-70, Contractor Property Management System Administration. The section also outlines in paragraph (d) the procedures for disposition of findings, including notification to the contractor, in writing, whether the contractor's property management system is acceptable and approved. If the contracting officer finds that there are one or more significant deficiencies (as defined in the clause at 352.245-70, Contractor Property Management System Administration) due to the contractor's failure to meet one or more of the property management system criteria in the clause at 352.245-70, the contracting officer shall—

• Promptly make an initial written determination on any significant deficiencies and notify the contractor, in writing, providing a description of each significant deficiency in sufficient detail to allow the contractor to understand the deficiency;
• Request the contractor to respond, in writing, to the initial determination within 30 days and;
• Evaluate the contractor's response to the initial determination, in consultation with the property administrator, and make a final determination.

Paragraph (d)(3) of this section also provides the procedures for final determination and notification to the contractor in writing whether acceptable and approved, whether significant deficiencies remain and the requested corrective actions, disapproval, and monitoring of the system. Paragraphs (e) and (f) provide policy and procedures on system approval, and other contracting officer notifications.

We propose to add section 345.107, Contract clauses, to prescribe the HHSAR clause at 352.245-70, Contractor Property Management System Administration, be inserted in solicitations and contracts containing the clause at FAR 52.245-1, Government Property.

HHSAR Part 347—Transportation

We propose to add authority citations for part 347, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to add part 347, Transportation, to provide unique HHS delivery information and marking requirements. Proposed underlying sections 347.303-6, F.o.b. destination; 347.303-670, Place of delivery, prescribe clause 352.247-70, Delivery Location, or a clause substantially the same as the clause at 352.247-70 in supply contracts when it is necessary to specify delivery locations.

Section 347.305, Solicitation provisions, contract clauses, and transportation factors, and its underlying section 347.305-10, Packing, marking, and consignment instructions, prescribes two clauses:

• Paragraph (a) prescribes the clause 352.247-71, Marking Deliverables, or a clause substantially the same as 352.247-71 in solicitations and contracts if special marking on deliverables is required.
• Paragraph (b) prescribes the clause at 352.247-72, Packing for Domestic Shipment, in contracts when item(s) will be delivered for immediate use to a destination in the continental United States; when the material specification or purchase description does not provide preservation, packaging, packing, and/or marking requirements; and/or when the requiring activity has not cited a specific specification for packaging.

HHSAR Part 352—Solicitation Provisions and Contract Clauses

We propose to revise the authority citations for part 352, for the reasons set forth in the discussion and analysis section, to read as follows: 5 U.S.C. 301; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

We propose to revise subpart 352.1, Instructions for Using Provisions and Clauses, to update the underlying sections 352.100, Scope of subpart, and 351.101-70, Application of provisions and clauses, as follows:

We propose to revise 352.100, Scope of subpart, to make a minor grammatical revision by adding the word “supplemental” before the words “provisions and clauses” in the text to provide clarity.

We propose to add a section header with no text, 352.102, Incorporating provisions and clauses, to align the supplemental HHSAR section that follows it.

And we propose to renumber section 352.101-70 to 352.102-70 as the topical coverage in the text more appropriately aligns under FAR 52.102. We propose to add the phrase “unless fill-ins are required” at the end of paragraph (a) to add a caveat to the policy that it is not necessary to also include clauses in a task order or delivery order if it is included in the overarching master instrument.

We propose to add clause 352.201-70, Contracting Officer's Representative, as prescribed in section 301.602-70, to provide that if the contracting officer designates a COR, the contractor will receive a copy of the written designation. It will specify the extent of the COR's authority to act on behalf of the contracting officer. The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract.

We propose to revise clause 352.203-70, Anti-Lobbying, as prescribed in section 303.808-70, to make minor administrative and grammatical updates, including to the prescription. This clause provides that the contractor shall not use any HHS contract funds for:

• Publicity or propaganda purposes;
• The preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television, or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body, except in presentation to the Congress or any state or local legislature itself; or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any state or local government, except in presentation to the executive branch of any state or local government itself;
• Payment of salary or expenses of the Contractor, or any agent acting for the Contractor, related to any activity designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before the Congress or any state government, state legislature or local legislature or legislative body, other than for normal and recognized executive-legislative relationships or participation by an agency or officer of a State, local, or Tribal government in policymaking and administrative processes within the executive branch of that government.

We propose to revise clause 352.204-70, Prevention and Public Health Fund—Reporting Requirements, to update the prescription, and make minor administrative updates. In paragraph (a), we provide an updated citation to Public Law 112-74, section 220(b)(5). In paragraph (c), we correct grammar to move the word “electronic” after the words “508 compliant.” And in paragraphs (c)(2) and (5), we are removing the words “funds” and “funding” respectively for clarity since the acronym “PPHF” contains the word “fund” in its name.

We propose to add clause 352.205-70, Advertisements, Publicizing Awards, and Releases, to state that for HHS contracts and orders, the contractor shall not refer to the contract in commercial advertising or similar promotions in such a manner as to state or imply that the product or service provided is endorsed or preferred by the Federal Government or is considered by the Government to be superior to other products or services. An Alternate I version of the clause is proposed for use when a contract involves sensitive or classified information.

We propose to revise clause 352.208-70, Printing and Duplication, to update the prescription to a FAR compliant format, to move all definitions under paragraph (a), to provide context to the clause, to add headers to each paragraph to comport with FAR style and convention, to rephrase paragraphs (b) through (d) for clarity, and to add paragraph (e) to require the clause is flowed down in subcontracts.

We propose to add provision 352.209-70, Organizational Conflicts of Interest, to include the requirement that offerors shall provide a statement with its offer which describes, in a concise manner, all relevant facts concerning any past, present, or currently planned interest (financial, contractual, organizational, or otherwise) or actual or potential organizational conflicts of interest relating to the services to be provided under this solicitation.

We propose to revise clause 352.211-1, Public Accommodations and Commercial Facilities, to renumber it to 352.211-70 to comport with FAR drafting standards, and to revise the prescription to comport with FAR style conventions.

We propose to revise clause 352.211-2, Conference Sponsorship Requests and Conference Materials Disclaimer, to renumber it to 352.211-71 to comport with FAR drafting standards, to update the prescription to comport with FAR style conventions, and to make minor grammatical updates to paragraphs (a) and (b) for clarity.

We propose to revise clause 352.211-3, Paperwork Reduction Act, to renumber it to 352.211-72, update the title so it would read: “Paperwork Reduction Act Requirements,” and update the prescription to comport with FAR style conventions.

We propose to add clause 352.212-70, Gray Market and Counterfeit Items, to provide important protection for supplies or equipment offered to the Government to prevent unauthorized items from entering the HHS supply chain. HHS' critical mission is to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services. It is imperative that HHS have a high degree of fidelity in the supplies and equipment delivered to support the critical programs under its purview. This clause would importantly require that no used, refurbished, or remanufactured supplies or equipment/parts shall be provided, and that the procurement is for new Original Equipment Manufacturer (OEM) items only. As stated in paragraph (a), this clause would prohibit gray market items under the contract which are OEM goods intentionally or unintentionally sold outside an authorized sales territory or sold by non-authorized dealers in an authorized sales territory. Paragraph (b) provides that no counterfeit supplies or equipment/parts shall be provided. Counterfeit items include unlawful or unauthorized reproductions, substitutions, or alterations that have been mismarked, misidentified, or otherwise misrepresented to be an authentic, unmodified item from the original manufacturer, or a source with the express written authority of the original manufacturer or current design activity, including an authorized aftermarket manufacturer. Unlawful or unauthorized substitutions include used items represented as new, or the false identification of grade, serial number, lot number, date code, or performance characteristics. The clause would also state in paragraph (c) that the vendor is required to be an OEM, authorized dealer, authorized distributor, or authorized reseller for the proposed equipment, verified by an authorization letter or other documents from the OEM. All software licensing, warranty and service associated with the equipment shall be in accordance with the OEM terms and conditions.

We propose to revise provision 352.215-70, Late Proposals and Revisions, by updating the title to add “- R&D Solicitations” to make clear the types of solicitations this clause involves. And we propose to update the prescription to comport with FAR style conventions, and to substantively revise the provision for clarity and standard FAR clause and provision construction that uses lists for ease of reading. This would include revising the introductory text so that it clarifies that notwithstanding the procedures contained in the provision at FAR 52.215-1, Instructions to Offerors—Competitive Acquisition, paragraph (c)(3), the contracting officer may consider a proposal received for biomedical or behavioral research and development (R&D) solicitations after the date specified for receipt if the three conditions set forth in the clause are met.

We propose to add provision 352.215-71, Use of Non-Federal Evaluators—Conditions for Evaluating Proposals, as prescribed in 315.305-71, to provide terms and conditions pertaining to the use of non-Federal evaluators when evaluating proposals and offers. We propose to require that to participate in such role as a non-Federal evaluator, the Contractor shall agree that it and its employees, as well as any subcontractors and their employees as non-Federal evaluators will use the data (trade secrets, business data, and technical data) contained in any proposals under review for evaluation purposes only. Further, the Contractor, its employees, and subcontractors and their employees may not release, in whole or in part, any material received from the Government to evaluate and must protect and secure the data against unauthorized disclosure. The provision requires each non-Federal evaluator to insert their name, title, company, signature, and date and provide to the HHS office providing the material and the contracting officer.

We propose to remove clause 352.216-70, Additional Cost Principles for Hospitals (Profit and Non-Profit), as the requirement is being removed as a clause and placed in another part of the HHSAR—part 331. The clause number will be repurposed for a HHSAR part 316 related clause.

We propose to add clause 352.216-70, Allowable Cost and Payment for Hospitals (Profit and Non-Profit), to stipulate that payment amounts requested by the Contractor and included in invoices submitted for payment in accordance with FAR clause 52.216-7, paragraph (a)(1), must be determined allowable by the Contracting Officer in accordance with the FAR clause at 52.216-7, 45 CFR part 75, appendix IX, and FAR subpart 31.2.

We propose to remove two outdated clauses as they are no longer relevant to the HHS small business programs: 352.219-70, Mentor-Protégé Program, and 352.219-71, Mentor-Protégé Program Reporting Requirements. HHS does not currently have a mentor protégé program and the clauses are obsolete.

We propose to add two clauses related to the 8(a) partnership program under HHSAR part 319: the clause at 352.219-70, Notification of Competition Limited to Eligible 8(a) Participants, and the clause at 352.219-71, Notification of Section 8(a) Direct Award.

We propose to add clause 352.219-70, Notification of Competition Limited to Eligible 8(a) Participants, as prescribed in 319.811-370. This clause provides that when FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Participants, is utilized in conjunction with the FAR clause at 52.219-18, any award resulting from a solicitation will be made directly by the contracting officer to the successful 8(a) offeror. The contractor shall comply with the limitations on subcontracting requirements as provided in 13 CFR 125.6 and all other 8(a) program requirements, as set forth in 13 CFR part 124.

We propose to add clause 352.219-71, Notification of Section 8(a) Direct Award, as prescribed in 319.811-370. The clause alerts 8(a) firms of the direct contract authority and provides that by submission of its offer, the Offeror represents that it is in good standing and that it meets all the criteria for participation in the program in accordance with 13 CFR part 124, including compliance with the limitations on subcontracting, and the other 8(a) program principles and administrative requirement that are still under the SBA purview.

We propose to revise clause 352.222-70, Contractor Cooperation in Equal Employment Opportunity Investigations, by revising the title to read “Contractor Cooperation in Equal Employment and Anti-Harassment Opportunity Investigations” to convey the additional important new content added to the clause. We propose to update the prescription to comport with FAR style conventions, and to substantively revise the provision for clarity and standard FAR clause and provision construction. We propose to substantively revise the flow and content of the paragraphs to provide clarity and add headers to each paragraph. We propose to retain the three definitions from the existing paragraph (a), include the header “Definitions,” and revise the definitions to comport with standard FAR drafting style and convention. We propose to redesignate the existing paragraph (a) as paragraph (b) and add the header “Cooperation with investigations.” In paragraph (b), we also add the requirement for contractors to cooperate in HHS internal Anti-Harassment investigations. We also propose to redesignate paragraph (b) as paragraph (d) and add a header of “Subcontract flowdown.” We propose to update paragraph (c) and add the header “Compliance.”

We propose to revise clause 352.223-71, Instructions to Offerors—Sustainable Acquisition, to renumber it as 352.223-70 to comport with FAR and agency supplement numbering conventions. We propose to revise the title to read: “Instructions to Offerors—Sustainable Acquisition Plan,” to identify the content of the provision more clearly. We propose to make minor updates to revise the prescription, correct a FAR citations, and make minor grammatical revisions.

We propose to revise clause 352.223-70, Safety and Health, to renumber it as 352.223-71 to comport with FAR and agency supplement numbering conventions and to make other minor updates in the prescription.

We propose to add clause 352.225-70, Made in America—Personal Protective Equipment, that provides new legislative requirements from the Make PPE in America Act (Pub. L. 117-58, sec. 70951, dated November 15, 2021). This codifies a class deviation issued by HHS, Department of Health and Human Services (HHS) Class Deviation from the Health and Human Services Acquisition Regulation (HHSAR)—Implementation of the Make Personal Protective Equipment (PPE) in America Act Requirements, issued on February 9. 2023. The clause requires contractors to deliver only domestic personal protective equipment, unless the solicitation specifies delivery of foreign-made domestic personal protective equipment in the provision of the solicitation entitled “Made in America Certificate—Personal Protective Equipment.” The clause is to be inserted in solicitations and contracts for PPE as prescribed in 325.7103(a), above the micro-purchase threshold, when the clause at FAR 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services, is included in a solicitation or contract for PPE. Contracting officers shall include the full text of the clause at 352.225-70.

We propose to add provision 352.225-71, Made in America Certificate—Personal Protective Equipment, in solicitations containing the clause at 352.225-70. The provision requires the offeror to certify that each item of personal protective equipment, except those listed in paragraph (b) of this provision, is domestic personal protective equipment. The clause also requires the offeror to list offered foreign-made domestic personal protective equipment items in paragraph (b). The provision is to be inserted in solicitations as prescribed in 325.7103(b), above the micro-purchase threshold, when the provision at FAR 52.212-3, Offeror Representations and Certifications—Commercial Products and Commercial Services is included in a solicitation for PPE. Contracting officers shall include the full text of the provision at 352.225-71.

We propose to revise clause 352.226-1, Indian Preference, to renumber the clause to 352.226-70 to comport with FAR drafting standards and to make minor updates to the clause prescription and citation.

We propose to revise clause 352.226-2, Indian Preference Program, to renumber the clause to 352.226-71 to comport with FAR drafting standards and to make minor updates to the clause prescription and citation.

We propose to revise clause 352.226-3, Native American Graves Protection and Repatriation Act, to renumber the clause to 352.226-72 to comport with FAR drafting standards and to make minor updates to the clause prescription and citation.

We propose to revise clause 352.226-4, Notice of Indian Small Business Economic Enterprise set-aside, to renumber the clause to 352.226-73, and to capitalize “Set-Aside” in the title to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We also propose to update an HHSAR citation in the second sentence.

We propose to revise clause 352.226-5, Notice of Indian Economic Enterprise set-aside, to renumber the clause to 352.226-74, and to capitalize “Set-Aside” in the title to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We also propose to align the Public Law citation in paragraph (a), in the definition for “Alaska Native Claims Settlement Act (ANCSA)” to reflect the “Pub. L.” abbreviation and to update the HHSAR reference from the “subpart” to the “section” to standardize with FAR drafting standards. We also propose to spell out “contracting officer” in lieu of “CO” throughout the clause, as well as update any HHSAR section citations as these have been renumbered to comport with FAR standard numbering conventions.

We propose to revise clause 352.226-6, Indian Economic Enterprise Subcontracting Limitations, to renumber the clause to 352.226-75, to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We also propose to spell out “contracting officer” in lieu of “CO” throughout the clause and other minor administrative abbreviation update.

We propose to revise clause 352.226-7, Indian Economic Enterprise Representation, to renumber the clause to 352.226-76, to comport with FAR drafting standards and to make minor updates to the clause prescription and citation.

We propose to revise clause 352.227-11, Patent Rights—Exceptional Circumstances, to renumber the clause to 352.227-70, and to add the word “Supplement” in the title so it now reads: “Patent Rights—Supplement—Exceptional Circumstances,” to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We propose to remove the first introductory sentence in the clause and move it to a new paragraph (b). We propose to update the definition of “Agency” in paragraph (a) to make reference to HHS operating division or agency, and provide examples ( i.e., Centers for Disease Control and Prevention, Food and Drug Administration, etc.). We propose to renumber the existing paragraph (b) to (c) and update the FAR clause 52.227-11 title in paragraph (c)(2)(ii) to read “Patent Rights-Ownership by the Contractor” to reflect the correct FAR title. We also propose to make minor grammatical and FAR citation reference updates in paragraphs (c)(2)(ii) and (c)(3), and add paragraphs (c)(3)(i) and (ii) to the existing text to appropriately break up the text for ease of reading and reference. And we propose to make other minor citation reference numbering updates in the clause to reflect the correct paragraph numbers and to correct the FAR clause referenced in paragraph (e)(2) to read “FAR 52.227-11” versus “52.227-13.” And we propose to make other minor non-substantive administrative updates, and to update HHSAR clause reference cited in the prescription for Alternate I of the clause.

We propose to revise clause 352.227-14, Rights in Data—Exceptional Circumstances, to renumber the clause to 352.227-71, and to add the word “Supplement” in the title so it now reads: “Rights in Data—Supplement—Exceptional Circumstances,” to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We propose to revise clause 352.227-14, Rights in Data—Exceptional Circumstances, as a supplemental HHSAR clause to FAR clause at 52.227-14, Rights in Data. The current clause, 352.227-14, duplicates the FAR clause at 52.227-14 except for paragraphs (d)(4) through (6). These paragraphs were added to provide HHS-specific direction when a Decision of Exceptional Circumstances was issued (paragraphs (d)(4) and (5)), and to provide additional policy at paragraph (d)(6) regarding confidential information. We propose to remove paragraphs (a) through (d)(3) as redundant to the FAR clause and unnecessary in the proposed revision to the HHS supplemental clause. We propose to retain the existing paragraphs (d)(4) and (5), with minor administrative updates to citations referenced in the text. Additionally, we propose to remove paragraphs (d)(6), (e), (f), (g), (h), and (i) and the Alternate I through V paragraphs of the existing clause.

We propose to revise clause 352.227-70, Publications and Publicity, to renumber the clause to 352.227-72, to comport with FAR drafting standards and to make minor updates to the clause prescription and citation. We propose to revise paragraph (a) to reformat the paragraph to use a list of items the contractor shall send to the contracting officer's representative. And we propose to make minor administrative and editorial revisions in paragraphs (b) through (d) for clarity.

We propose to revise clause 352.231-70, Salary Rate Limitation, to comport with FAR drafting standards and to make minor updates to the clause prescription and citation and to include a subcontract flowdown requirements in a new paragraph (f).

We propose to revise provision 352.232-70, Incremental Funding, to comport with FAR drafting standards and to make minor updates to the provision prescription and citation.

We propose to revise clause 352.232-71, Electronic submission of payment requests, to capitalize the major words in the title and make minor updates to the clause prescription and citation to comport with FAR drafting standards.

We propose to revise clause 352.233-70, Choice of Law (Overseas), to make minor updates to the clause prescription and citation to comport with FAR drafting standards.

We propose to revise clause 352.233-71, Litigation and Claims, to make minor updates to the clause prescription and citation to comport with FAR drafting standards.

We propose to revise clause 352.236-70, Design-Build Contracts, to make minor updates to the clause prescription and citation to comport with FAR drafting standards.

We propose to revise clause 352.237-70, Pro-Children Act, to revise the title of the clause to read: Nonsmoking Policy—Delivery of Services to Children, to make substantive updates to add needed content and bring reference citations up to date, and to make minor updates to the clause prescription and citation to comport with FAR drafting standards. We propose to revise each paragraph in the clause to add headers. In paragraph (a), the paragraph is revised to make clear that smoking is prohibited in facilities where certain federally funded children's services are provided pursuant to the Pro-Children Act, 20 U.S.C. 7181, Public Law 107-100, sec. 4301 (the Act). Other edits for grammatical clarity are made. In paragraph (b), the text is updated to make clear that the offeror represents and understands that by submission of its bid or offer and if awarded a contract for this requirement the contractor agrees to comply with the requirements of the Act and the prohibition of smoking in facilities as specified in paragraph (a) of the clause. Paragraph (c) is updated to provide information concerning penalties for each violation. And a subcontractor flowdown clause is added as paragraph (d).

We propose to revise 352.237-71, Crime Control Act—Reporting of Child Abuse, to revise the title of the clause to read: Reporting of Child Abuse, to make substantive updates to add needed content and bring reference citations up to date, and to make minor updates to the clause prescription and citation to comport with FAR drafting standards. We propose to redesignate the existing paragraph (a) as paragraph (b) and move two existing definitions for “child abuse” and “covered professionals” from paragraph (b) into a new paragraph (a), and to add a header titled “Definitions.” We propose to add a header to the redesignated paragraph (b), Responsibility to report child abuse, and to update the statute citation. We propose to remove the existing paragraph (b) in its entirety as the definitions previously in this paragraph have been moved to paragraph (a), Definitions, to align such definition placement at the beginning of the clause to comport with FAR drafting conventions. We propose to add headers to paragraphs (c) and (d), and we propose to add a new paragraph (e) to provide subcontract flow down requirements.

We propose to revise clause 352.237-72, Crime Control Act—Requirement for Background Checks, to revise the title of the clause to read: Requirement for Background Checks, to make substantive updates to add needed content and bring reference citations up to date, and to make minor updates to the clause prescription and citation to comport with FAR drafting standards. We propose to redesignate the existing paragraph (a) as paragraph (b) and move an existing definition for “child care” from paragraph (b) into a new paragraph (a), and to add a header titled “Definition.” We propose to add a header to the redesignated paragraph (b), Requirement for background checks, and to update the statute citation. We propose to add headers to redesignated paragraphs (c) and (d), and we propose to add a new paragraph (e) to provide subcontract flow down requirements.

We propose to revise clause 352.237-73, Indian Child Protection and Family Violence Act, to revise the title of the clause to read: Indian Child Protection and Family Violence Act—Background Investigation, to make substantive updates to add needed content and bring reference citations up to date, and to make minor updates to the clause prescription and citation to comport with FAR drafting standards. We propose to redesignate the paragraphs by adding a designation for paragraph (b) to break up the existing paragraph (a), and to redesignate paragraph (b) as paragraph (c), and add a paragraph (d) to provide subcontract flow down requirements.

We propose to revise clause 352.237-74, Non-Discrimination in Service Delivery, to make substantive updates to add needed content and bring reference citations up to date, and to make minor updates to the clause prescription and citation to comport with FAR drafting standards. We propose to add paragraph designations and headers to the clause, which will now contain paragraphs (a) through (c). We propose paragraph (a), Policy, to provide the policy of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). We propose to add paragraphs (b) and (c) to provide that the offeror represents and understands that by submission of its bid or offer and if awarded a contract for this requirement the contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract in a non-discriminatory manner. And in paragraph (c) we propose to add a subcontract flow down requirement.

We propose to revise clause 352.237-75, Key Personnel, to make minor administrative and grammatical updates, and to update the clause prescription and citation to comport with FAR drafting standards.

We propose to add clause 352.241-70, Disputes—Utility Contracts, to provide that the requirements of the Disputes clause at FAR 52.233-1 are supplemented to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to any determinations by the independent regulatory body having jurisdiction.

We propose to add clause 352.242-70, Administrative Contracting Officer, to stipulate that the contracting officer reserves the right to designate an Administrative Contracting Officer (ACO) for the purpose of performing certain tasks/duties in the administration of the contract. It also states that such designation will be in writing through an ACO Letter of Delegation and will identify the responsibilities and limitations of the ACO, with a copy to be furnished to the contractor.

We propose to add clause 352.242-71, Government Construction Contract Administration, to detail certain delegated contract administration functions, for construction contracts, set forth in FAR 42.302 that are delegated, if any, and to stipulate express functions that are not delegated.

We propose to add clause 352.245-70, Contractor Property Management System Administration, that would be inserted in solicitations and contracts containing the clause at FAR 52.245-1, Government Property, to require the contractor to establish and maintain an acceptable property management system and that failure to maintain an acceptable property management system, as defined in this clause, may result in disapproval of the system by the contracting officer and/or withholding of payments. The clause provides three definitions, and details what criteria will be utilized by the Government in its review of the contractor's property management system how system deficiencies will be handled, and how the contracting officer will evaluate the contractor's response, and the contracting officer's notification on resolution or disapproval. The clause provides for a contracting officer's final determination and requires the contractor to, within 45 days of receipt of final determination, either correct the significant deficiencies or submit an acceptable corrective action plan showing milestones and actions to eliminate the significant deficiencies.

We propose to add clause 352.247-70, Delivery Location, to be used in supply contracts when it is necessary to specify delivery locations and provides an insert in the clause for the address and identifying data for shipment of deliverable items other than reports.

We propose to add clause 352.247-71, Marking Deliverables, as prescribed at 347.305-10(a), Packing, marking, and consignment instructions, or a clause substantially the same as the proposed clause at 352.247-71, in solicitations and contracts if special marking on deliverables is required.

We propose to add clause 352.247-72, Packing for Domestic Shipment, as prescribed at 347.205-10(b), in contracts when item(s) will be delivered for immediate use to a destination in the continental United States; when the material specification or purchase description does not provide preservation, packaging, packing, and/or marking requirements; and/or when the requiring activity has not cited a specific specification for packaging. This clause requires that material shall be packed for shipment in such a manner that will ensure acceptance by common carriers and safe delivery at destination. Containers and closures shall comply with regulations of carriers as applicable to the mode of transportation.

We propose to revise the provisions and clauses related to HHSAR part 370, as follows, in the order currently reflected in the Code of Federal Regulations:

We propose to revise provision 352.270-4a, Notice to Offerors, Protection of Human Subjects, to make minor administrative corrections to renumber the provision to 352.270-70, revise the HHSAR citation referencing the prescription, provide the current electronic Code of Federal Regulations website address for 45 CFR part 46, update other 45 CFR part 46 citations where included in the provision, and add paragraph (h) to provide the registration processes.

We propose to revise clause 352.270-4b, Protection of Human Subjects, to make minor administrative corrections to renumber to 352.270-72 and to revise the HHSAR citation referencing the prescription.

We propose to revise 352.270-5a, Notice to Offerors of Requirement for Compliance with Public Health Service Policy on Humane Care and the Use of Laboratory Animals, to make administrative corrections. This includes revising the provision to a clause, renumbering the clause to 352.270-77, revising the title to “Compliance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals,” and revising the HHSAR citation referencing the prescription. These revisions would add paragraph (a), Definitions, and three definitions, as well as additional content to paragraph (b) that the contract will not be awarded without the approval of the Office of Laboratory Animal Welfare, National Institutes of Health upon receipt of the contractor's assurance. We propose to revise paragraphs (b) and (c) to combine the current content into paragraph (b), and revise paragraph (c) to permit the contracting officer to immediately suspend, in whole or in part, work performance and further payments if the contractor is not in compliance with any of the requirements and standards in the clause.

We propose to revise clause 352.270-5b, Care of Live Vertebrate Animals, to make minor administrative corrections to renumber the clause to 352.270-78, revise the HHSAR citation referencing the prescription, remove duplicative content in paragraph (c), change the “Note” to new paragraph (e), and other minor edits for clarification.

We propose to revise clause 352.270-6, Restriction on Use of Human Subjects, to make minor administrative corrections to renumber the clause to 352.270-73, revise the HHSAR citation referencing the prescription, and other minor edits for clarification.

We propose to remove the “352.270-7—352.270-8 [Reserved]” annotation as it is no longer needed with the revision, renumbering, and retitling of the clauses and provisions under this part.

We propose to revise provision 352.270-9, Non-Discrimination for Conscience, to make minor administrative corrections to renumber the clause to 352.270-79, revise the HHSAR citation referencing the prescription, and to add “The PEPFAR Stewardship Act of 2013, and The PEPFAR Extension Act of 2018,” to paragraph (a).

We propose to revise provision 352.270-10, Notice to Offerors—Protection of Human Subjects, Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required, to make minor administrative corrections to renumber the clause to 352.270-71, slightly revise the title and the HHSAR citation referencing the prescription, update the citation of the HHSAR provision number in paragraph (a), and other minor punctuation edits.

We propose to revise clause 352.270-11, Protection of Human Subjects—Research Involving Human Subjects Committee (RIHSC) Approval of Research Protocols Required, to make minor administrative corrections to renumber the clause to 352.270-74, revise the HHSAR citation referencing the prescription, update the citation of the HHSAR provision number in paragraph (a), and other minor punctuation edits.

We propose to revise clause 352.270-12, Needle Exchange, to make minor administrative corrections to renumber the clause to 352.270-75 and revise the HHSAR citation referencing the prescription.

We propose to revise clause 352.270-13, Continued Ban on Funding Abortion and Continued Ban on Funding of Human Embryo Research, to make minor administrative corrections to renumber the clause to 352.270-76 and revise the HHSAR citation referencing the prescription.

This table reflects the above proposed revisions and renumbering of the HHSAR part 370 prescribed clauses and provisions: